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THE 



PRINCIPLES OF EQUITY: 



TREATISE 



SYSTEM OF JUSTICE ADMINISTERED 



COURTS OF CHANCERY. 



BY 

^ , GEO. TUCKER BISPHAM, 

* ■ ^ • • ,■ 

LATE PROFESSOR OF EQUITY JURISPRUDENCE IN THE UNIVERSITY OF PENNSYLVANIA. 

REVISED AND WITH ADDED NOTES AND REFERENCES 

TO RECENT AUTHORITIES. 

BY 

JOSEPH D. McGOY, 

OF THE PHILADELPHIA BAR. 



TENTH EDITION. 



THE BANKS LAW PUBLrSHING CO. 

NEW YORK 
1922 



/d/^J-JT-, 



Entered according to the Act of Congress, in the year 1874, by 

GEO. TUCKER BISPHAM, 

in the Office of the Librarian of Congress, at Washington. 



Entered according to the Act of ,Congress, in the year 1878, by 

GEO. TUCKER BISPHAM, 

in the Office of the Librarian of Congress, at Washington. 



Entered according to the Act of Congress, in the year 1882, by 

GEO. TUCKER BISPHAM, 

in the Office of the Librarian of Congress, at Washington. 



Entered according to the Act of Congress, in the year 1887, by 

GEO. TUCKER BISPHAM, 

in the Office of the Librarian of Congress, at Washington. 



' Entered according to the Act of Congress, in the year 1893, by 
^ GEO. TUCKER BISPHAM, 

in the Office of the Librarian of Congress, at Washington. - 



Entered according to the Act of Congress, in the year 1899, by 

GEO. TUCKER BISPHAM, 

in the Office of the Librarian of Cohgress, at Washington. 



Entered according to the Acl of Congrass, in the year 1905, by 

GEO. TUCKER BISPHAM, 

in the Office of the Librarian of Congress, at Washington. 



Entered according to the Act of Congress, in the year 1909, by 

NANCY BRINLEY BISPHAM, 

in the Office of the Librarian of Congress, at Washington. 



Entered according to the Act of Congress, in the year 1915, by 

NANCY BRINLEY BISPHAM, 

in the Office of the Librarian of Congress, at Washington. 



Copyright 1922 by 
NANCY BRINLEY BISPHAM. 




PREFACE TO THE TENTH EDITION 



The Tenth Edition of Bispham's Principles of Equity is 
the third edition since the death of the author. In the 
Eighth Edition (as the author had but recently died) the 
text was riot altered — ^necessary additions appearing in the 
foot notes. In the Ninth Edition and in this edition certain 
sections have been revised owing to changes in the law. 

As in previous editions reference to cases have been 
brought down as far as possible to the date of going to press 
and a considerable number of new cases have been added. 

In preparing this edition the editor is glad to acknowledge 
the valuable assistance of the following members of the 
Philadelphia Bar: — Harold D, Saylor, Esq., E. F. Leiper, 
Jr., Esq., Harry O'Donnell, Esq., and Bertram K. Wolfe, 
Esq.; and, in the preparation^ of the Table of Cases, the 
assistance of Mr. William E. Scarlett. 

J. D. McC. 

Philadelphia, August, 1922. 



m 



PREFACE TO THE FIRST EDITION 



DuKiNG the past few years the growth of equity jurispru- 
dence, both in a scientific and a practical aspect, has been 
very great. 

The decisions of the courts, especially in England, have 
been marked by a freshness and a vigor which have infused 
new life into the whole body of chancery law, and have 
rendered it not only attractive to the student, but of immense 
usefulness in its appUcation to the business affairs of men. 

This practical usefulness has been extended by statute as 
well as by judicial decisions; and legislation upon this sub- 
ject has, in England, culminated in the passage of the Su- 
preme Court Judicature Act of 1873, by which it is provided 
that the principles of iequity shall hereafter be adopted for 
the purposes of the administration of justice in all the 
courts. 

To a certain extent the hterature of this branch of the law 
has kept pace with the growth of the law itself. Treatises 
are constantly being produced in, which particular subjects 
connected with the jurisprudence of courts of chancery are 
ably and elaborately discussed; and works upon Trusts, lur 
junctions. Fraud, Estoppels, and kindred topics, have mul- 
tipUed in the hbraries of the profession. Moreover, in Eng- 
land, efforts have been made to generalize the progress which 
the science of equity has been making; and several treatises, 
of a more or less^omprehensive character, have been written 
in which the advances of the law in this great field of justice 
have been pointed out. 

In the United States, however, scarcely any attempt has 
been made recently in this direction. The efforts of those 
members of the profession who have the time and inclina- 
tion to devote themselves to legal literature have been di- 

V 



vi PEEFACE TO THE FIRST EDITION. 

rected towards the production of treatises upon particular 
subjects, or to the annotation of existing standard com- 
mentaries. Hence, there seems to have arisen a want for 
some general work in which the development and present 
condition of equity jurisprudence should be- expressed. 

The present treatise is an attempt to supply this want. 
The effort has been to explain the modern doctrines of courts 
of equity, knd to illustrate the manner in which they have 
befen applied; and at the same time to exemplify and define 
the principles of equity as they have existed in the English 
law from the earliest times. 

It will be seen, upon examination, that the general plan 
of the treatise is based upon the division suggested by Mr. 
Spence in his celebrated work upon the Jurisdiction of the 
Court of Chancery, viz.. Equitable Titles, Equitable Rights, 
and Equitable Remedies; but that the arrangement of the 
subdivisions under these generaF heads is to a great extent 
original. 

As the present book is designed for students as weU as for 
practitioners, one great object has been to avoid a superabun-; 
dance of citations upon the one hand, and upon the other 
any omission of authorities by which the doctrines stated in' 
the text ought to be verified and illustrated. 

It cannot be hoped that the proper mean between these 
two extremes has been always observed; but it is trusted that 
the authorities cited have been sufficiently numerous to give 
to the practitioner in every State the benefit of decisions of 
his own courts upon the subjects attempted to be explained, 
while, atjthe same time, care has been taken not to over- 
crowd the treatise with masses of authorities upon single 
points. 

In citing particular decisions at any length, selections 
have generally been made from the modern reports, partly 
because such volumes are usually within the convenient 
reach of almost every reader, and partly because in them 
(and particularly those which contain the decisions of the 
English equity judges of the present time) the doctrines 
Bought to be explained have been most elaborately discussed, 



PBBFACE TO THE FIRST EDITION. Vll 

and their application most practically illustrated. For the 
same and other obvious reasons, the treatises upon partic- 
ular subjects which have been referred to have almost in- 
variably been those of writers of the present day. ' 
. It need hardly be said, however, that while for the pur- 
pose of presenting a view of equity jurisprudence as it now 
exists, modern treatises have been consulted and modern 
authorities cited,- yet, at the same time, regard has been 
always had to the ancient decisions wherein the principles of 
equity have had their birth and their early development. 
Every writer, as well as every student, should always have in 
his recollection the advice of Sir Edward Coke, "that in 
reading any of these new reports he neglect not the reading 
of the old books of years reported in former ages, for assuredly 
out of the old fields must spring and grow the new corn." 

G. T. B. 
Philadelphia, February, 1874. 



TABLE OF CONTENTS. 

[The referiences are to the sections.] 



' INTRODUCTION 

CHAPTER I 

RISE AND PROGRESS OF THE HIGH COURT OF CHANCERY 



.1. Definition of equity. 

2. Importance of the historical view 

of equity. 

3. Early iSnglish courts; the councils 

of the king. 

4. Ordinary council, or curia regis; 

Exchequer and Common Fleas. 

5. Court of King's Bench. 

6. Position of the chancellor. 

7. Origin of his extraordinary juris- 

diction. 

8. Cases in which this jurisdiction 

was exercised. 
0. General conclusions deduced from 



the above — writ of subpcena — 
pleadings and evidence. ~ 

10. Progress of the jurisdiction of the 

chancellor. 

11. Changes in the English system 
~' ■ introduced by 'Act of August 5, 

1873. 

12. Principles of equity adopted in 

the United States. 
1.3. Jurisdiction of the federal courts. 

14. Changes of mode of procedure in 

some 'of the states. 

15, Classification of the states upon 

this subject. 



CHAPTER II 



.m: 



GENERAL OUTLINE OF EQUITABLE JURISDICTION 



16. Three great divisions of Equity. 

17. Equitable Titles; Example. 

18. Equitable Rights; Example. 

19. Equitable Remedies; Example. 

20. Subjects of Equitable Jurisdic- 

tion; Trusts. 

21. Mortgages. 

22. Assignments. ^ 

23. Accident and Mistake. 

24. Fraud. 

38. Notice; Estoppel; Eleoti6o> 



26. Conversion. 

27. Adjustment; Set-off; Contribu- 

tion; Subrogation; Exonera- 
tion;' Marshalling. 

28. Equitable liens. 

29. Specific performance. 

30. Injunctions. 

31. Re-execution; Reformation; Re- 

scission; Cancellatibh. 

32. Account; Dower; Partition; Con- 

fusion of Boundaries; Rent. 

ix 



CONTENTS. 



33. Partnership Billa; Creditors' Bills; 

Administration Suits. 

34. Infants, Idiots, and Lunatics. 

35. Discovery; Commissions to ex- 

amine witnesses abroad; Per- 



petuation of Testimony; Exam- 
inations de bene ease. 
36. Bills quia timet; Receivers; Write 
of ne exeat; Writs of tuppli- 
cavU. 



CHAPTER III 



MAXIMS IN EQUITY 



37. Definition; No right without a 

remedy. 

38. Equity follows the law. 

39. Vigilantibus non dormieniibus 

^quilaa avbvenit. 

40. Between equal equities the law 

will prevail. 

41. Equality is Equity. 

42. He who comes into Equity must 

do 80 with clean hands. 



43. He who seeks Equity must do 

Equity. 

44. Equity looks upon that as done 

which ought to be done. 

45. Between equal equities priority 

of time will prevail. 

46. Equity imputes an intention to 

fulfil an obligation. 

47. Equity acts in personam. 

48. Equity acts specifically. 



PART I 

EQUITABLE TITLES 
, CHAPTER I 



trusts; their origin, history, and general nature 



49. Definition of Trusts. 

50. Distinction between Trusts and 

Fidei Commissa. 
Origin of Trusts. 
Trusts before the Statute of 

Uses; Statute I Rich. III., c. 1. 
53. Statute of. Uses; 27 Hen. VIII., 

c. 10. 
General nature of Trusts; Active 

and Passive Trusts. 
When Trusts will be executed by 

the Statute; Rules in several 

States. 



51. 

52. 



54. 



56. 



56. Lawful and Unlsiwful Trusts. 

67. Executed and Executory Trusts; 
Glenorchy v. Bosville; Sack- 
ville-West v. HolmesdaJe. 

58. Reformation of executory instru- 

ments creating Trusts. 

59. Public And Private Trusts. 

60. General rules for the devolution 

of Equitable Estates. 

61. Alienation of Equitable Estates; 

Liability for debts. 

62. Exceptions to the general rules of 

devolution' of Equitable Es- 
tates. 



CONTENTS. 



XI 



CHAPTER II 



EXPRESS trusts; and herein of voluntary declarations 

IN TRUST, OF precatory TRUSTS, AND OF POWERS IN TRUST 



S3. Trusts created by direct fiduciary 
expressions; Trusts averable at 
Common Law. 

64. Statute of Frauds. 

65. Language by which a Trust may 
^ he created. 

66. Voluntary dispoBitions in Trust; 

Milroy v. Lord; En Parle Pye. 

67. General result of the authorities; 

Donaldson «. Donaldson; tlich- 
ards V. Delbridge. 

68. Voluntary Assignments for the 

benefit of Creditors. 

69. Meritorious Consideration; Ellis 

V. Nimmo. 



70. Donatio mortis causa. 

71. Trusts created by Precatory 

Words; English doctrine. 

72. Doctrine on this subject in the 

United States generally; in 
Pennsylvania and Connecticut. 

73. What precatory words will create 

a Trust." 

74. Are such words 'prima jade im- 

perative? 

75. Certainty of the object is an ele- 

ment for cbnsideration. 

76. Certainty of the subject. 

77. Powers in Trust; Sahtsbury ▼. 

Denton. 



CHAPTER III 



IMPLIED TRUSTS 



78. Implied Trusts of two kinds: Re- 

sulting Trusts and Construc- 
tive Trusts. 

79. Resulting Trusts of four kinds. 

80. Purchase-money paid by one; 

title taken in name of another. 

81. Requisites to such a Trust. 

82. Statute of Frauds. 

83. Parol evidence admissible. 

84. Advancements. 

85. Trusts of this kind abolished in 

certain States. 

86. Purchases by Trustees with Trust 

Funds: Following Trust Funds. 



87. Conveyance where Trust is not 

declar^ or fails. ^ 

88. Where the beneficial interest is 

not exhausted. 

89. Exceptions in favor of charities. 

90. Conveyances without considera- 

tion. 

91. Constructive Trusts. 

92. Trustee cannot acquire rights an- 

tagonistic to cestui que, trust. 

93. Extent of this rule, ^ 

94.. Trustee cannot purchase at his 

own sale. 
95. Other Constructive Trusts. 



CHAPTER IV 



96. 



97, 



TRUST'S FOR MARRIED WOMEN 



Rights of husband at common 

law in wife's property. 
Statutory changes. 



Creation of trusts for sole and 

separate use. 
Trustee not necessary. 



xu 



CONTENTS. 



100. No particular words necessary. 

101. Power of married women over 

sep'arate estate. 

102. Liability of separate estate to 

her engagements. 

103. Rules in the United States upon 

this subject. 

104. Restraints on. anticipation. 

105. For whose benefit separate es- 

tates may be created. 

106. Rules in the United States upon 

this subject. 



107. General conclusions; Lewia't 

propositions. 

108. Pin-money trusts. 

109. Wife's equity to a settlement. 

110. How enforced. 

111. How waived. 

112. To what property it attaches. 

113. Against whom, and in whose 

favor. 

114. Gifts from husband to wife;- 

contracts. 

115. Contracts for separation. 



CHAPTER V 



TRUSTS FOR CHARITIES 



116. Uncertainty in the object a 

characteristic of a charitable 
use^ 

117. Importance of charitable uses. 

118. Origin of charitable uses; Vidal 

V. Girard's Executors. 

119. Statute of Elizabeth. 

120. Classification of charitable gifts; 

Gifts for eleemosynary pur- 



121. Gifts for educational purposes. 

122. Gifts for religious purposes. 

123. Gifts for public purposes. 

124. Definition of a charitable use; 

Mr. Binney's definition; Jacli- 
son V. Phillips. 



125. Characteristics of a charitable 

use; uncertainty of the object. 

126. The C2/ pres doctrine. 

127. Jackson v. Phillips. 

128. Cy pres doctrine in England 

prerogative and judicial. 

129. Soundness of the latter doctrine. 

130. Rules of the different states. 

131. Nature of the uncertainty which 

should avoid a charitable gift. 

132. Resulting trusts in cases of char- 

itable gifts; Thetford School 
Case. 

133. Perpetuities and Accumulations. 

134. Statutes of Mortmain. 



CHAPTER VI 



trustees; their powers and duties 



135. Jurisdiction of Courts of Equity 

over trustees. 

136. Who may be a trustee; corpora- 

tions. 

137. Acceptance of the trust. 

138. General duties of trustees. 

139. Conversion of securities; de- 

posits. 



140. Investments by trustees; Eng- 

Ush rule. 

141. Rules in the United States. 
■142. When trustees are chargeable 

with interest. 
143. Trustee cannot use his positioa 
for bis own advantage. 



CONTENTS. 



Xlll 



144. Ciompensation of trustees; dif- 
ference between English rule 
and that in most of the United 
States. 

146. Trustee cannot delegate his au- 
thority. 



146. Responsibility for acts of oo- 
- trustee. 

147. Remedies for breach of trust. 

148. Trustees' Accounts. 



CHAPTER VII 



MORTGAGES 



140. The law of Mortgages no longer 
peculiar to Equity. 

150. Nature of a Mortgage; origin of 

Equity of Redemption. 

151. Nature of the Equity of Re- 

demption; limitations. 

152. Nature of Mortgagor's title in 

England; in the United States. 

153. Once a mortgage, always a 

mortgage. 

154. Distinction between mortgages 

and conditional sales. 



155. Absolute deed may be shown to 

be a mortgage. 

156. Foreclosure suits..' 

157. Rights and duties of mortgagor 

and mertgagee. 

158. Tacking. 

159. Mortgages to secure future ad- 

vances. 



160. 



161. 



Merger; sometimes prevented in 
Equity. 

Equitable mortgages to be con- 
sidered under Liens. 



CHAPTER VIII 



ASSIGNMENTS 



162. Common-law rule forbidding as- 

signment of choses in action. . 

163. iExceptiOns. 

164. Such assignments allowed in 

equity. 

165. Assignments of future property; 

Holroyd ». Marshall; Tailby 
V. Official Receiver. 
106.. Exceptions to the general rule. 

167. Requisites to an equitable as- 

signment. 

168. When notice of assignment nec- 

essary; to whom given. 



169. Authorities in the United States 

conflicting. v 

170. Effect of equitable assignments; 

assignment is subject to equi- 
ties between original parties. 

171. Whether assignment is subject 

to equities of third parties. 
172.' Rights of actidn of the assignee 

at law; in equity. 
173. Liability to be sued cannot be 

transferred; exceptions. 



XIV 



CONTENTS. 



PART II 

EQUITABLE RIGHTS 

CHAPTER I 



ACCIDENT AND MISTAKE 



174. Definition of Accident. 

175. Limitations upon the relief af- 
. forded in equity. 

176. Cases in which relief will be 

afforded. 

177. Lost instruments; advantages of 

remedy in equity.- 

178. Penalties. 

"179. Liquidated damages. 

180. Agreements for reduction of 

debt. 

181. Forfeitures. 

182. Defective execution of powers. 

183. Miscellaneous cases. 

184. Equitable remedies in cases of 

Mistake. 

185. Definition of Mistake. 



Mistakes of two kinds — of Law 

and of Fact. 
Mistakes of Law; Hunt v. Bou*- 

manier's Adm'rs; Griswold v. 

Hazard. 
Misrepresentation and Surprise. 
Compromis,es of doubtful rights; 

family arrangements. 
Mistakes of Fact; different 

kinds. 

191. Must be mutual, material, and 

not induced by negligence. 

192. Defective execution of powers. 

193. What defects may be remedied. 

194. For whose benefit. 

195. Against whom. 

196. Miscellaneous cases. 



186. 



187. 



188. 
189. 

190. 



CHAPTER II 

FRAUD 

SECTION I 



GENEBAL NATURE OF FRAUD; ACTUAL FRAUD 



107. Importance and general nature 
of equitable jurisdiction in 
cases of Fraud. 

198. Distinctions between the relief 
at law and in equity. 

lOB. Limitations upon the jurisdic- 
tion of equity in cases of 
Fraud; Fraud in obtaining a 
will; Allen v. McPherson. 



200. Concurrent jurisdiction of_ eq- 

uity. 

201. Exclusive jurisdiction. 

202. Fraudulent transaclSons void- 

able, not absolutely void. 

203. Within what time redress muat 

be sought. 

204. Fraudulent transactions must 

be adopted or set aside in loto. 



CONTENTS. 



XV 



205. General diviaion of the subject 

of Fraud. 

206. General nature of actual fraud. 

207. Matters of opinion. 

208. Prospectuses of projected com- 

panies; Central Railway Co. v. 
Kisch. 

209. Puffing; Mortimer v. Bell. 

210. Fraud on owner of property sold 

at auction. 

211. Matters of intention. 

212. Matters of law. 

213. Suppressio veri. 



214. Knowledge of the truth or false- 

hood by party making the 
representations; classification 
of cases on this subject, 

215. Representation must he relied 

on. 

216. Representation must be mate- 

rial; dolus dans locum eon- 
tractui. 

217. Party deceived must be injured; 

representations by agents. 

218. Trustees ex maXeficio. 



SECTION II 

FRATJD AKISINQ FROM THE INTRINSIC NATURE OF THE TRANS- 
ACTION 



219. Contracts void by reason of 

their terms; inadequacy* of 
consideration. 

220. "Bargains by reversioners and ex- 

pectant heirs. 
22L Change of the law in England. 

222. Usurious contracts. 

223. Gambling contracts. 

224. Contracts void by reason of 



their subject-matter; ex turpi 
causA nan oritur actio. 

Gifts in restraint of marriage; 
rule of the Roman Law. 

Conditions in general restraint 
. of marriage. 

227. Conditions in partial restraint. 

228. Contracts in restraint of trade. 

229. Sales of public offices. 



225. 



226. 



SECTION III 



FRAUD PRESUMED FROM THE RELATIONS OF THE PARTIES 



230. Mental disability; drunkenness; 

duress. 

231. Undue influence; gifts; Hu- 

guenin v. Baseley. 

232. Contracts; Tate v. Williamson. 

233. Parties between whom con- 

fidential ~ relation ordinarily 
exists. 



234. Guardian and ward. 

235. Parent and child. 

236. Solicitor and client 

237. Trustee and cestui que trust. 

238. Fiduciary can make no profit; 

Tyrrell ».-Bank. 

239. Promoters of companiea. 



XVI 



CONTENTS. 



^ SECTION IV 

I 

FRAXnj AFFECTING THIRD PARTIES; GENERAL RULES AS TO 

FRAUD 



240. Subdivisions of frauds of this 

class; fraud upon creditors. 

241. Statute 13 Elizabeth, o. 5. 

242. Jurisdiction .of equity in cases 

under the statute. 

243. Conveyance must be for a good 

consideration, and bona fide. 

244. Moral obligations; consideration 

of marriage. 

245. Voluntary transfers; convey- 

ances by persons indebted. 

246. Conveyances of property which 

could not be reached by exe- 
cution. 

247. Gifts from husband to wife. 

248. Parties by whom fraudulent 

conveyances may be avoided. 

249. Secret agreements touching com- 

position deeds. 

250. Fraud upon subsequent pur- 

chasers. Statute 27 Eliz., 
c. 4. 

251. Difference between the English 

and American rules. 

252. Statute not applicable to per- 

sonal chattels. 



253. Fraud on marital rights; S^trath- 

raore v. Bowes. 

254. Ignorance of the husband as to 

the existence of property im- 
material. 

255. Circumstances which constitute 

fraud on marital rights. 

256. Fraud on powers; Alqrn v. Bel- 

chier. 

257. Appointment must be made 

solely to carry out the purpose 
of the power;,Topham v. The 
Duke of Portland. 

258. Admissibility of parol evidence 

to vary or contradict written 
instruments in cases of fraud; 
WooUam v. Hearn; Gillespie 
V. Moon. 

259. How the right to impeach a 

fraudulent transaction may 
be lost; confirmation; release; 
acquiescence. 

260. Delay; bona fide purchasers for 

value. 



CHAPTER III 



NOTICE 



201. Doctrine of notice not applica- 
ble to contests between purely 
legal titles. 

262. Applicable to equitable titles; 

Le Nsve v. Le Neve. 

263. Illustrations of the doctrine. 

264. Parties by whom want of notice 

may be set up. Rules on this 
subject. 



265. Extent of protection afforded 

by want of notice. 

266. English rule that payment of 

purchase-modey and acquisi- 
tion of legal title must both 
precede notice. 

267. Rule in United States; proteo- 

tion pro tanto. 



CONTENTS. 



XVll 



268. Notice actual and conatructive; 

actual notice either direct or 
presumptive. 

269. Constructive notice; Vice-Chan- 

fcellor Wigram's division. 

270. Nbtice by registration. 

271. What registration will operate 

as notice. 

272. Effect of actual notice of unreg- 

istered conveyance. 

273. Constructive notice of same. 



274. IA» Pendens. 

275.' Plea of bona fide purchaser for 
value. 

276. Can be used by the holder of an 

equitable title. 

277. Doctrine of seeing to the appli- 

cation of purchase-money. 

278. Abolished in England. 

279. Of little importance in the 

United States. 



CHAPTER IV 



EQUITABLE ESTOPPEL; ELECTION 



280. 
281. 

282. 

283. 

284. 

285. 

286. 

287. 

'288. 



290. 
291. 



Definition of estoppel. 

Different kinds of estoppel; le- 
gal estoppels in ■pais. 

Equitable estoppel or estoppel 
by conduct; founded on fraud. 

A party may be estopped by the 
assertion of an untruth. Con- 
gregation V. Williams. 

A party may be estopped by the 
concealment of the truth, 
Pickard v. Sears. 

Conduct which works an estop- 
pel must be external to the 
contract. 

Representations between party 
alleging estoppel and party 
estopped. 

Representations between party 
alleging estoppel and third 
party. 

Representations need not be 
known to be 'false by party 
making them. 

Must operate to deceive the 
party to whom they are made. 

Intention that conduct should 
be" acted on must exist. 

Estoppel must be actually pro- 
duced by the conduct. 



292. Estoppel is limited to the repre- 

sentations made. 

293. Estoppels in the cases of mar- 

ried women and infants. 

294. Estoppels bind parties and priv- 

ies. 

295. Election; definition and ex- 

. ample. 

296. Of J two kinds; express and 

implied. 

297. Importance of the distinction 

between the two. 

298. Circumstances under which the 

doctrine of election arises; il- 
lustrations. 

299. After-acquired lands. 

300. Powers. 

301. Donor must give property of his 

own. 

302. Property of ,the donee must be 

also given. 

303. Gifts must be by the same in- 

strument. 

304. Manner in which election may 

be/iade. 

305. Consequence of an election is 

compensation, not forfeiture. 

306. Application of doctrine of elec- 

tion to case of creditors. 



xvaii 



CONTENTS. 



CHAPTER V 



CONVERSION AND RECONVERSION 



307. General nature and extent of 

equitable conversion. 
Example: Fletcher v. Ashburner. 
Conversion may take place 

either under a trust or under 

a contract. 
What language is necessary, to 

effect a conversion. 
In what ways a trust to convert 

may be made imperative. 
Question of conversion one of 

intention. 
Contract, to work a conversion, 

must be binding. 
314. General results of a conversion; 

qualifications. 
Failure of the purposes of a con- 
version; resulting trust. 
Ackroyd v. Smithson; Smith v. 

Claxton. 



308 
309 



310. 



311. 



312. 



313. 



315. 



316. 



317. Conversion "out and but." 

318. Doctrine in the United States 

on this subject. 

319. Conversion under instruments 

inter vivos. 

320. Time from which a conversion 

takes place. 

321. Conversion under optional con- 

tracts. 

322. Reconversion may be by act of 

party or by act of law. 

323. Election to reconvert may be 

either by express declaration 
or by acts. 

324. By whom such election may be 

made. 

325. Reconversion by operation of 

law 



CHAPTER VI 



ADJUSTMENT 



326. Equities to be considered under 

Adjustment; Set-off, Contri- 
bution, Exoneration, Subro- 
gation, and Mi^-shalling. 

327. Setoff. 

328. Contribution; application most 

frequent in case of sureties. 

329. No contribution originally en- 

forceable at law; advantages 
of equitable proceeding. 

330. General rules as to right of con- 

tribution. 

331. Exoneration; not originally en- 

forceable at law. 

332. Cases in which these equities are 

usually applied. 



333. Sales of different parcels of 

mortgaged land to successive 
purchasers. 

334. General average. 

335. Subrogation; nature of the 

- right. 

336. Judgment may be kept alive 

after it is paid, in order to 
protect equities. 

337. Extent of the doctrine of sub- 

rogation. 

338. Qualifications. 

339. Surety can compel a creditor to 

make a prompt use of his 
remedies. 

340. Marshalling. 



CONTteN'TS. 



XlX 



341. 



342. 



343. 



344. 



345. 



Usually enforced tlirotigli the 
medium of Subrogation. 

How the equity of marshalling 
is sometimes qualified. 

Its application in cases of bank- 
ruptcy. 

Caqes in which this equity is 
usually applied in the United 
States; doctrine of Fosdick v. 
Schall. 

Marshalling as applied to estates 
of decedents. 



346. Order in which assets of a decs- 

dent are applied to the pay- 
ment Qf his debts. 

347. How the general personalty may 

be exonerated. 

348. Exoneration by implication. 

349. When realty and personalty 

contribute pro rata. 

350. Assets will not be marshalled in 

favor of a charity. 



CHAPTER VII 



LIENS 



351. Distinction between liens at 

common law and in equity. 

352. Instances of equitable liens. 

353. Vendor's lien for purchase- 

money. 

354. Nature of this lien. 

355. Waived by taking independent 

security. 



356. Parties for and against whom 

the lien exists. 

357. Deposit of title deeds. 

358. Mortgages of personalty. 

359. Pledges. 

360. Liens in aid of equitable and 

legal rights. 



PART III 

EQUITABLE REMEDIES 

CHAPTER I 

SPECIFIC PERFORMANCE 



361. General nature of this equitable 

remedy. 

362. Inadequacy of common-law rem- 

edies. 

363. Other grounds of the superiority 

of the remedy in equity. 

364. Contracts for the sale of real 

estate. 



365. May be enforced between orig- 

inal parties, and those who 
claim under them. 

366. May be enforced as to real es- 

tate outside of the iurisdic- 
tion. 

367. Covenants for further assurance. 

368. Personal property. 



XX 



CONTENTS. 



' 369. When dafnages cannot be ascer- 
tained. 

370. Other contracts. ■ ^ 

371. Specific performance rests in 

discretion of the court. 

372. Contract must be founded on a 

valuable consideration. 

373. Meritorious considerations. 

374. Adequacy;. 

3J75. Performance in specie must be 
necessary. 

376. Must be in accordance with 
general equitable doctrines. 

3.77. Contract must be mutual, cer- 
tain and practicable. 

378. Purchaser not compellable to 
accept a doubtful title. 

• 379. Pyrke v. Waddingham. 

380. Other rules as to title. 

381. .Parol variations of written con- 

tracts; Townshend v. Stang- 
room. 

382. Authorities in the United States. 
,383. Statute of Frauds; exceptions. 

384. Part performance. ' 

385. What constitutes part perform- 

ance. 



386. When the reduction of the con- 

tract to writing is prevented 
by fraud. i 

387. When the parol contract is ad- 

mitted in the answer. 

388. Specific performance with com- 

pensation for defects. 

389. When the purchaser may be 

compelled to take. 

390. When he may elect to take; 

limitations upon this doc- - 
trine. 

391. Time to make out a title beyond 

the day. 

392. Due diligence retjuired". 

393. Rule altered by express stipu- 

lations, or by presumptions 
growing out of the nature of 
the contract. 

394. Surrounding circumstances. 

395. Compensation; Sir Hugh 

Cairns's Act. 

396. Doctrine in the United States. 

397. Parties compelled to make good 

their representations. 

398. Enforcing negative, covenants. 



CHAPTER II 

INJUNCTIONS 

SECTION I 



GENERAL NATURE OF INJUNCTIONS; INJUNCTIONS TO RE- 
STRAIN INFRINGEMENT OF EQUITABLE RIGHTS; AND HEREIN 
OF INJUNCTIONS TO RESTRAIN PROCEEDINGS AT LAW OF 
BILLS OF peace; AND OF BILLS OF INTERPLEADER 



399. Definition of an injunction. 

400. Injunctions either mandatory 

or prohibitory; mandatory in- 
junctions. 

401. Prohibitory injunctions. 

402. Character of the- equitable rem- 

edy by injuhction. 



403. Classification of injunctions; in- 

terlocutory and perpetual. 

404. Ex parte, or at the hear- 

ing. 

405. CSmmon, or special. 

406. General division of the ei^bject 

of injunctions. 



CONTENTS. 



XXI 



407. Injunctions to restrain proceed- 

ings at law; Earl of' Oxford's 
Case. 

408. Not in the nature of Writs of 
■ Prohibition. 

409. General nature of this jurisdic- 

tion. 

410. General extent of this jurisdic- 

tion; equitable titles protected. 

411. Equitable rights protected. 

412. Equitable remedies assisted. 

413. Injunctions to prevent vexa- 

tious litigation; election be- 
tween remedies. 

414. Injunctions after the court has 

assumed jurisdiction of a 
• cause. 

415. Bills of Peace, two classes; as- 

sertion of a common right. 

416. Sheffield Water Works v. Yeo- 



417. General rules as to Bills of 

Peace of the first class; Phil- 
lips V. Hudson. 

418. Bills of Peace of the second 

class. 

419. Bills of Interpleader. 

420. Bills must show title in two 

claimants. 

421. Complainants must claim no 

, interest. 

422. Debt or duty must be the 

same. 

423. Injunctions in aid of proceed- 

ings in Bankruptcy. 

424. In what courts proceedings will 

be restrained. 

425. Injunctions in oases of trusts. 

and mortgages. 

426. Injunctions between partners. 
42^. Restraint of disclosure of con- 
fidential communications. 



SECTION II 



INJUNCTIONS TO PROTECT LEGAL RIGHTS 



428. Classification gi cases in which 

injunctions issue to protect 
legal rights. 

429. Waste. 

430. Common-law remedies; . their 

defects. 

431. Reasons for remedy in equity. 

432. Nature of waste. 

433. Parties who will be restrained 

from committing waste. 

434. Equitable Waste. 

435. Destructive Trespass; origin of 

jurisdiction in such, cases. 

436. Subdivisions of the subject. 

437. Public companies; restrained 

from improperly taking land. 

438. Nuisance. 

439. Remedies at common law; their 

defects. 

440. How far complainant's title at 

law must be established. 

441. Different kinds of nuisance. 



442. Coming to a nuisance. 

443. Lateral support to soil; Pur- 

prestures; Public Companies. 

444. Injunction in cases of Patent 

Right, Copyright, Literary 
Property and Trade-marks. 

445. Inspection. 

446. Injunction. ^ , 

447. Account. 

448. Patent right. 

449. Previous trial at law to estab- 

lish right unnecessary. 

450. Copyright." 

451. Copyright; in the United States. 

452. Piracy, what it is. 

453. Other, requisites to an injunc- 

tion. 

454. Literary property; Prince Al- 

bert V. Strange. 

455. Questions as to publication. 

456. Trade-marks. 

457. What are trade-marks. 



xxu 



CONTENTS. 



458. Diligence; colorable imitations. 
469. Alienation of negotiable securi- 
ties. 

460. Preservation of property pend- 

ing litigation. 

461. Breach of negative covenants. 

462. Lumley v. Wagner^ 



463. Instances of covenants which 

have been restrained. 

464. Negative quality import^ into 

afibmative covenants. 

465. Injunctions in cases of Oorpo- 

rations. 



CHAPTER III 

RB-EXECUTION, KEFOBMATION, RESCISSION, AND CAN- 
CELLATION 



466. Reason for the existence of 

these equitable remedies. 

467. Re-execution. 

468. Reformation. 

469. General principles in such cases. 

470. Admissibility of parol evidence. 

471. Reformation under presump- 

tion of law. 

472. Rescission; voidable contracts, 

how far good. 

473. Cancellation as applied in the 



rescission of voidable cdh- 
tracts. 

474. Cancellation independent of re^ 

scission. 

475. Relief by rescission and cancel- 

lation a matter of judicial dis- 
cretion.. 

476. Compensation. 

477. Rule in England; Sir Hugh 

Caims's Act. 
478. . No uniform rule on this subject 
in the United States. 



CHAPTER IV 



ACCOUNT; partition; dower; boundaries; rent 



479. General nature of the right to 

an account. 

480. Bills for Account. 

481. Inadequacy of the common-law 

remedies. 

482. Ori^n of the remedy in equity. 

483. Limitations upon this remedy. 

484. Extent of the remedy. 

485. Plea of stated account. 

486. Leave to surcharge and fal- 

sify. 

487. Partition; ori^n of juiisdiction 

of chancery. 



488. Disadvantages of proceeding at 
common law; changes by stat- 
ute in the United States. 

Advantages of mode of proce- 
dure in equity. 

Mode of making partition in 
equity. 
491. Difficulties of making partition 
no objection to a decree. 

Power to award owelty. 

Power to order a sale. - 

Nature of Dower. 

Remedy by bill in equity. 



489. 



490. 



492 
'493 
494 
495 



CONTENTS. 



xxm 



496. Disadvantages of the proceed- 

ing at .common law. 

497. Advantages of the procedure in 

equity. 

498. Account of mesne profits. 

499. Multiplicity of suits avoided. 

500. Dower out of- equitable estates. 



501. General conclusionB as to equi- 

table jurisdiction. 

502. Manner of assigning dower. 

503. Jurisdiction of equity in cases of 

confusion of boundaries. 

504. In cases of rent. 



CHAPTER V 



PARTNERSHIP BILLS 



506. 



507. 



508. 



506. Reasons for resorting to equity 
in partnership cases. 

Nature of the contract of part- 
nership. ' 

Many equitable remedies ap- 
plied to partnership cases. 

Peculiar remedy by partnership 
bills; bills for account need 
not pray a diasolution. 

509. Causes of dissolution; grounds 

for bills for dissolution. 

510. Preservation of partnership 

property. 

511. Doctrine of conversion aa ap- 

plied to partnership real es- 
tate; rule in England. 

512. Rule in the United States. 

513. Qualifications of the rule. 



514. Sale and account. 

515. Winding-up partnerships; joiat ' 

and separate debts. 

516. Separate assets of deceased 

partner applied in the first 
instance to payment of sep- 
arate debts. 
-517. Extension of this doctrine: 
English rule. 

Rule in Tucker v. Oxley. 

Bankruptcy Act of 1898. 

520. Method in which joint creditors 

may collect their debts. 

521. Remedies of separate creditors. 

522. Joint and separate executions. 

523. Suits between firms having a 

common member. 

524. Mines. 



518. 
519. 



CHAPTER VI 
creditors' bills and administration suits 



525. Creditors' bills; are of two 

classes. 

526. Creditors' bills against a debtor 

during Ufetime; inefficiency 
of common-law executions. 

527. Nature and effect of the equita- 

ble remedy. 

528. Creditors' bills of the second r 

class; Administration suits. 

529. Not 6f great importance in this 

country. 

530. General course of proceeding in 

an administration suit. 
631. Equitable Assets; doctrine of 



comparatively little impor- 
tance. 

532. Origin of the doctrine. 

533. Silk V. Prime. 

534. Cook V. Gregson. 

535. Doctrine of Performance. 

536. Covenant to settle, and subifr; 

quent purchase. 

537. Covenant to pay, and subse- 

quent intestacy. 

538. Satisfaction ; of debts by legacies. 

539. Of legacies by legacies. 

^40. Of legacies by portions; of por- 
tions by legacies. 



XXIV 



CONTENTS. 



■CHAPTER VII 



INFANTS, IDIOTS AND LUNATICS 



541. Protection afforded to the per- 
sons and estates of infants at 
common law, and by statute. 

642. Necessity for, and origin of the 
jurisdiction of Ahe chancellor. 

543. Infant is made a ward of 

court. ' 

544. To be made a ward of court the 
' infant must have property. 

'545. Proceedings 'may be by petition 

as well as by bill. 
546. Appointment and removal of 

guardians; custody of infants. 



547. Guardianship a father's duty, 

not a privilege. 

548. Education of the ward. 

549. Management of his estate. 

550. Marriage of the ward. 

551i Nature and origin of the juris- 
diction of the chancellor over 
lunatics and idiots. 

552. Statute of Edward II. 

553. Subject generally regulated by 

statute in the United States. 

554. Method of procedure in lunacy. 

555. Appointment and powers of 

committee. 



CHAPTER VIII 



DISCOVERY 



556. Defects in common law as to 

discovery; statutory changes. 

557. Origin and nature of bills of 

discovery. 

558. Subject not of as much im- 

portance as formerly. 

559. Discovery must be in aid of 

'legal proceedings. 

560. General right of complainant 

in bills of discovery. 

561. Rules for protection of defend- 



ant; need not discover his own 
title, nor evidence thereof. 

562. Need not criminate himself. 

563. Confidential communications as 

to litigation. 

564. State secrets. 

565. In bills of discovery courts will 

go on and afford relief. 

566. Production of documents. 

567. Commissions to examine wit- 

nesses abroad; -to take testi- - 
mony de bene esse. 



CHAPTER IX 



BILLS QUIA timet; RECEIVERS; WRITS OP NE EXEAT; AND OF 

SUPPLICAVIT 



568. Bills Quia Timet; their general 

nature. 

569. Examples. 

670, Personal property limited for 
life with remainders over. 



571. Courts of equity will not enter- 

tain bills solely to declare 
rights. 

572. Will not' interfere in certain 

cases of covenants. 



CONTENTS. 



XXV 



573. Bills to perpetuate testimony. 

574. Bills to establish wills. 

575. Bills to remove a cloud from 

title. 

576. Receivers; general nature of the 

jurisdiction. 

577. Appointment a matter of dis- 

cretion; rules under which 
the discretion is exercised. 



578. Cases in which a receiver will be 

appointed. 

579. Effect of appointment. ' 

580. Powers and duties of a receiver. 

581. Writa oi-Ne Exeat. 

582. Writs of SupplicavU. 

'583. Progressive capacity of Equity 
Jurisprudence. 



TABLE OF CASES 



[The references are to the pages.] 



A 



Aaron's Reefs o. Twiss. ....... 358 

Abbey ». Dewey , . . . . 366 

Abbot V. Moldestad 590 

V. Rubber Company 245 

». Wilbur 483 

Abdy, In re 205 

Abel V. riesher 686 

Aberaman Iron Works v. Wickens 

577, 753 
Aberdeen Town Council v. Aber- 
deen University 242 

ABernethy v. Hutchinson 716 

Abraham v. Newcombe 200 

V. Ordway 67 

Academy v. Clemens 225 

w. DeBit 642,684 

Acheson v. Miller '. . . 538 

Acker v. Phoenix .~ 123 

w. Priest 148 

Ackerman's Appeal 549 

Ackerman v. Emott 240 

w. Fichter 210, 217 

V. Thummel 670 

Ackerson v. L. R. Co 311 

Ackroyd v. Smithson. . 166, 509, 518, 

519, 520, 521 

Acme Brewing Co. v. Fletcher . . 668 

Acton V. Dooley 482 

». Woodgate 129 

Adair v. Seminary 690, 707 

W.Winchester 300 

Adam v. Newbigging 749 

Adams and the Kensington Ves- 
try, In re 135, 136, 138 

Adams's Estate 246' 

Adams v. Adams. .124, 126, 206, 
266, 340, 871 



Adams v. Barrett 378 

V. Brackett 566 

V. Bus Line 286, 538 

V. Dixon 812 

V. Donovan 732 

V. Edgerton 427 

». Gillig 357 

V. Larson 607 

V. Maekey 191 

V. Shewalter. 789 

V. Soule 351 

V. Union Co... 409 

». Ursell 698, 703 

V. Young 553 

Adan v. Steinbrecker 351 

Aday v. Echols 609, 754 

Adcock V. Leiber 620 

Addains v. Tutton 785 

Adderly v. Dixon 597, 604 

Addison v. Bowie 507 

Addlestone Linoleum Co., In re. . 750 

Adlington v. Cgjm 121 

Adlum V. Yard 508 

Adnam v. Cole 212 

Adrikans v. Dill 344, 345 

Adsit V. Adsit 501 

Advance Co. v. Fishback 482, 

Adye v. Feuilleteau 240 

,». Smith 213 

iEtna Co. v. Malone 726 

iEtna Ins. Co. v. Parker 542 

V. Wires 549 

Life Ins. Co. v. Middleport. . 550 

Affleck V. Affleck 331 

Aflalo V. Fourdrinier 549 

Agar V. Fairfax 766, 767, 769, ,770, 
772, 779 

V. Murray 806 

67 

xxvii 



XXVIU 



TABLE OP CASES. 
[The references are to the pages.] 



Agnew V. Bell .'. . .532, 542 

Agnew V. Fetterman 819 

V. Southern Ave. Land 

Co 609 

Agra Bank v. Barry ^. 469 

Agra & Masterman's Bank, In re 

296, 497 
Agricultural Bank v. Fallen. . 539, 554 

Aguilar v. Aguilar 536 

Ahearne v, Hoga^ 410 

Ahern v. JVlcCaithy 265 

Ah Foe V. Bennett 406 

Ahl's Appeal 57, 58, 250 

Ahrend.t), Qdiome 572 

Ahrens v. Jones 341, 368 

V. Simon ..." ..'.... 150 

Ahrent ». Sprague 686 

Aiello V. Montecalfo 725 

Aigeltinger v. Eingtein 809 

Aiken v. Gale 539 

t). Steiner 796 

1. Suttle \ 861 

Aikin v. Smith ; 98 

Ainjan v. Stout 393 

Ainslie v. Boynton 530 

Ainsworth v, Harding 171 

V, Walmsley 718 

Akerly v. Vilas 343 

Akin V. Bonffls. . 408 

V. Jones. .~. 291 

Alabama v. Gulf Coal Co 68 

Mineral Land Co. v. 

Jackson f.., 617 

Alabone's Estate 516 

Alaska Co. v. Ebner -. 410 

Albany College v. Monteith .... 216 

Albea v. Griffin 620 

Albergottie v. Chaplin 767 

-Albert v. The City of Baltimore. 451 
V. The Savings Bank .... 451 

Albertson v. Laughlin 71 

Albion State Bank v. Knicker- 

■ bocker 547, 551 

Albiston's Estate, In re 614 

Albright v. Oyster 646 

!). Stockhill 370 

Albritton v. Commission Co 863 

Alder V, Seaman 868 



Alderson, Ex ■parte 288 

Aldine Mfg. Co. v. Phillips 584 

Aldous V. Olverson 420 

Aldred's Case .702, 703 

Aldrich v. Aldrich 136, 139 

V. Cooper. 540, 553, 554, 555, 
556, 558, 564, 565, 567 

V. Hapgood 542 

V. H^ssinger 369 

Aldridge v. Dunn 576 

V, Thompson 664 

Alexaiider's Appeal 605 

Alexajider|s Estate 654 

Alexajider v. Alexander 619 

V. Crosbie 746 

P.Fisher 680 

V. Hendeison 668 

V. Leakin 813 

V. Pendleton .... 859 

f. Tebeau 704 

V. Warram 156 

Aleyn v. Belchier _. 437 

Allan V. Gott ' 566 

AUcard v. Skinner 398, 399, 410 

». Walker 318, 320, 321 

Allegheny Base Ball Club v. Ben- 
nett , 730 

Alle0-etti v. Allegretti 722 

Allen, .Ba; parte 393 

Allen, Inre ^ 469 

Allen's Estate 621 

Allen t). Allen 249 

V. Anthony 462 

ti. BarUey 764 

V. Berry 71 

V. Board of Freeholders. . . 707 

V. Boomer 498 

V. Center Valley Co 795 

V. Chambers 118, 620 

V. Clark 539 

V. Dermott 544 

V. Elder... 56, 320 

V. Flood 695 

V. Frawley 357 

V. Gillette 174 

t). Henn 346 

V. Imlett 89 

V. Jackson 334 



TABLE OF CASES. 
[The references are to the pages.] 



XXIX 



AlleiTP. Kitchen 617 

V. Lathrop 272 

w. Luckett ' 326 

V. M'Neelan. 364 

V. M'PhersOn .337-340 

V. Montgomery 808 

V. Moore 622 

». Patrick 274 

e. Perrine 555, 673 

V. Kerce 654 

V. Pulhnan Palace Car Co. 669 

V. Beckham 463 

«. Stevens. .214, 226, 228, 231 

V. Waldo 859 

V. Walker 721 

V. Wedgwood 214 

W.Wells 796 

V. Withrow , 121 

«. Wood...^ 531 

». Zinc Co 350 

Allen Co. v. Emerton 255 

AUender v. Evans-Smith Drug 

Co 569 

Allerton v. Belden '. . . 726 

Alliance Bank, Ex parte. ...'.... 570 
AlUance Trust Co. v. Mult- 
nomah Co 669 

Allin V. Millison 352 

Allis's Estate 240 

Allis'D. Billings 393 

w. HaU 649 

Allison's Appeal .' 679 

Allison & Evans's Appeal. . .687, 755 

Allisan v. Cocke's Ex'rs 312 

V. Herring. 762 

Allore V. Jewell. . ., 344, 395, 444 

AllBopp V. Wheatcroft 386 

Allyn V. Allyn 592, 596, 597 

Almond v. Almond 202 

Almony v. Hicks. 860, 861 

Akay v. Jones 210, 216, 232 

V. Reed 305 

Alspaugh V. Adams 159 

Alston, Ex parte. -584 

Alsworth V. Cordtz 154 

Alton V. Men-itt : .660, 663 

Aluminum Castings Co. v. Mold- 
er's Union 694 



Amanda G. M. Co. v. People's 

M. Co 599 

Amber Size Co. v. Menzel 675 

Ambrose v. Ambrose 116 

^ Ambrosius v. Ambrosius 124 

Ambrouse v. Keller. ...... .591, 604 

American Bible Soc. v. Am. 

Tract Soc 213 

Base, Ball Co.'fti. Har- 
per 733 

Bonding Co. v. Me- 
chanics' Bank, 541 

Bonding Co. v. Rich- 
ardson 246 

Bridge Co. v. Heidel- 

bach 267 

Clay Mfg. Co. v. Amr 

ClayMfg.'Co 721 

Co. ». Pipe Co 541 

Freehold, etc., Co. v. 

Jefferson 73 

Ins. Co. ». Haynie. . . . 486 
Machine Co. v. Dowa-, 

giac. . . ; 667 

Malting Co. v. Keitel 

692, 714- 
Mfg. Co. w. O'Hara. .. 332 
MiUing Co. v. Standard 

Co 755 

Nat. Bank v. North- 
,^ western Life Ins. Co. 866 

Pin Co. V. Wright 290 

School, etc., V. Mc- 

Annulty 58 

Smelting Co. v. God- 

;^ frey 703 

V. Mining Co 597 

Sugar Refining Co. v. 

Fancher. ..162, 338, 388 
Surety Co. v. Liunber 

Co 541 

Tobacco Co. v. Werk- 

meister 711 

Aines V. Ames 606, 768, 829 

W.Miller 273, 274 

V. Witbeck 555 

Amherst Coll. v. Ritch. 341, 359, 368 
Ammon's Appeal 425, 427 



XXX 



TABLE OF CASES. 



[The references are to the pages.] 



^modeo Co. v. Woodward 688 

Amory v. College 165 

Amoskeag Mfg. Co. v. Spear 722 

Amphlett v. Parke 521, 524 

Amusement Co. v. Amusement 

Co 649 

». El Paso Co.. 643 

Andersen v. Cercone 146 

Anderson, Inre 324, 403 

Anderson's Appeal 606 

Anderson's Case 415 

Anderson v. Abbott 498 

V. American Smelting 

Co 703 

V. Anderson 205, 601, 

608, 790 

V. Arrington 67 

V. Brinser 463 

V. Burwell 344 

w. Chick 620 

V. Colwell . 265 

V. Englehart 682 

V. Greble 538 

V. Harvey 684, 687 

V. Harrington 120 

1). Hultberg 158 

V. Institutes Co.. .652, 728 

V. Kemper 129 

V. Lemon 170 

ti. McCloud-Love Live 

Stock Co. 555 

V. Neff 270 

». Noble .652, 761 

V. Olsen , 598 

V. Phlegar. 485 

V. Schneider 620 

V. Scott 441 

V. Stemway. 606, 613 

V. Walker 492 

V. Wallace Co 590 

w, Willson 625 

Anding v. Davis 115 

Andrews, Inre 133 

Andrews, Matter of 829 

Andrews v. Andrews .230, 324, 

733, 744 

V. Bell 606 

V. Brown 626, 630 



Andrews v. Hobson 124 

B.Jones.. 198, 403 

V. Kingsbury 386, 732 

V. Lavery. 401 

«r. McCoy 296 

V. Mockford 353 

». Partee -. . 420 

w. Salt 834 

V. Solomon 848 

V. Tuttle 67 

Andries v. Detroit Ry- do 782 

Anewalt's AppeaU 513 

' Angel V. Hadden. 664 

Angell V. Angell 858 

Angelus v. SulUvan 64 

'Angle V. Chicago, etc., Ry 368 

Angus v. CUfford 347, 361 

Ankeney v. Hannon 187, 190 

Annan u. Merritt 619 

Aimis V. Butterfield 285 

Anstee v. Light, etc., Co 700 

Anthes v. Schroeder 654 

Anthony v. Brown 396 

ti. Rogers 268 

Shoe Co. V. West Jersey 

R. R. Co 707 

Apgar V. Connell 176 

V. Hiler 536 

Appel V. Buckbinder 467 

Appleby v. Appleby 384 

Applegate v. TruSt Co ,. . . 697 

Appleton V. Rowley 108 

Arbour v. Pittsburgh Trade Assn. 692 

Arbuckle v. Blackburn 653 

Arbuthnot v. Norton 286 

Archer's Case 413, 416 

Archer v. Hudson 404, 406 

V. Rorke 182 

V. Sand Co 686 

Arden v. Patterson: 285 

Ardesco Oil Co. -o. N. A. Mining 

Co 537 

Arguello v. Edinger 620 

Arizona Copper Co. v. Gillespie 

636, 691 
Arkansas Railroad Rates, In re 671 
Shingle Co. v. Meto 
Ry. Co 569 



TABLE OF CASES, 
[The references are to the pages.] 



Arkenden v. Starkey 14 

Arlin v. Brown 573 

Arlington State Bank v. Paulsen 547 

Armington v. Palmer 725 

Armistead v. Hartt 98 

Armitage «. Pulver. 535 

^ V. Wadsworth 302 

Armstrong v. Coal Co 615 

W.Gilchrist 57,. 762 

V. Morrill 236 

V. Owens 265 

v.'Ross 190 

V. Warner 530 

Ama's Appeal 554 

Amdt V. Griggs 81 

Amison v. Smith 353, 365 

Arnold, In re -. . . . 567 

Arnold v. Alien 244 

V. Arnold 137 

V. Bank 291 

11. Gilbert. 510 

v. Hagerman 795 

». Klepper 699 

V. Maxwell 789 

Amot V. Pittston & Elmira Coal 

Co 387, 389 

Arntson v. Bank 169 

Arques v. Wasson 283 

Arthur v. Marrow 420 

, V. Oakes 691, 693, 734 

Artman v. Giles 645 

Asam V. Asam 146 

Asbury v. Carroll 636 

Ash's Appeal ^ . . . . 99 

Ashburton v. Ashburton 835 

Ashby V. Pahner .516, 525 

V. Yetter 369 

Ashcraft v. Little 181, 182 

Ashe V. Johnson . 595 

Asher v. Pendleton 308 

Asheville St. Ry. v. Asheville. . . 729 
Ashhurst's Appeal. 99, 101, 111, 444 

Ashhurst v. GivenT . .' 103, 110 

Asherisby v. Levenon 64 

Ashley w. Pick 483 

Ashton's Appeal 456 

Ashton V. Shepherd 265 

V. Thompson , . . . . 399 



XXXI 



169 



Ashuelot R. R. Co. v. Elliot. 

Ashworth ». Munn .^ 566 

Asia V. Hiser B30 

Aspinwall v. Aspinwall ......... 207 

Assignment Of Murdoch v. Dick- 
son, In re ' 242 

Astel V. Causton 640 

Astor V. Wells 460, 468 

Astreen v.^ Flanagan 156 

Asylum v. Lefebre 230, 231 

Atcheson v. Mallon 356 

Atchison Ry. Co. v. Bennett. . . . 350 
V. Spaulding. . 686 

Atchley v. Perry 602 

Atherton v. Roche 318 

Athey v. Knotts 419 

Atkins V. Atkins 312 

V. Kron 109 

Atkinson v. Allen 377 

». Doherty 738 

«. Foote 272 

V. Marks 664 

w. Plum 492 

V. Ward ,. . 159 

Atlanta v. Gate City Gas Co. . . 667 
Atlanta Trust & Bk. Co. v. 

Nelms ; 318 

Atlantic Delaine Co. v. James . . . 752 
ti. Tredrick. 643 

Atlas Co. V. Bechard 358 

Attebery v. Plair 614 

Att.-Gen. v. American Life Ins. 

Co 291 

V. Andrews 216 

V. Armstrong 212 

». Baliol College. .220, 222 
V. Borough of Birming- 
ham 634 

V. Bowyer 216 

V. Bradford Canal 698 

p. Briant 849 

V. Briggs 221 

V. Brunning 511 

, V. Central Railroad of 
New Jersey (The) 

635, 637, 736 

^ . I). Clarendon 61 

«i. Clark 209 



xxxu 



TABLE OP CASES. 
[The references are to the pages.] 



Att.-Gen. v. Cole 698 

V. Collom 487 

V. Craven 222 

V. Crofts 256 

V. Dean of Windsor. . . 230 

V. Doughty'. 702 

V. Gibson 223 

11. Gladstone 216 

V. Glasgow College 220, 222 

». Guise 220, 222 

«. Haberdashers' Co... 212 

». HaU 217 

». Heelis 212, 218 

V. Hicks 222 

V. Ironmongers' Co. 

214, 220, 222 
V. Jacobs Smith. . . 423, 434 

V. Manchester 701 

V. Marquis of Ailes- 

bury 840 

V. Merrimack Mfg. Co. 120 
V. Metropolitan Board 

of Works 638 

V. Mid. Kent. Ry. Co.. 636 

!>. Oakaver 212 

«. Paterson 655, 692 

V. Pearson 212 

». Price 223 

V. Railroad Companies 736 

«. Ruper ^. 212 

V. Sands 90, 109 

B.Sheffield Gas Co.... 738 

w. Soule - 227 

V. Stephens 782 

V. Stepney 216 

V. Utica Ins. Co^. 707 

». Wallace .".... 216 

V. Wax Chandlers' Co. 230 
V. William and Mary's 

College 212, 216 

Attwood V. Banks 667 

V. Coe 847 

V. Lamont 385 

». Small 364, 365 

Atwater v. Castner 722 

V. Russell 228 

Atwell V. Atwell 514 

Atwood V. Trust Co 121 



Atwood V. Vincent 544 

Aubin V. Holt 786 

Audenreid v. Phila. & Read. R. 

Co ^37 

Augusta Laundry Co. v. Debow. . 308 

AuU V. St. Louis Trust Co. .... . 813 

Aultman v. Bishop 543, 549 

Aultman & Co. v. Wett 421 

Austin V. Halsey 575 

.V. Taylor 97, 104 

Austin V. Austin 834 

V. Converse 705 

«;. Mead 132, 133 

V. Mmor 860 

V. Shaw 120 

Auter V. MiUer '600 

Auto Co. V. Colter 661 

Auto Light Co. V. Prest-O-Lite 

Co 720 

Automobile Service Co., In re. . . 547 

AveUng v. Knipe 149 

Averill v. Loucks 799 

Averitt V. Elliot '. 243 

Avery v. Bank 538 

. V. Popper & Bro 288 

V. Ryan 595 

~-v. Stewart 146 

Avon, etc.. Imp. Co. v. "Thomp- 
son ."...-... 599 

Aycinena v. Peries 62 

Aydelott v. Breeding 240 

Ayer v. Ayer 180 

Ayerst v. Jenkins 444 

Aymar v. Roft 829 

Aynesworth v. Haldeman 120 

Aynsley v. Glover 702 

Ajmsly V. Reed 256 

Ayres v. Husted 556 

». Waite 255 

». Wattson .493, 583 

B 

Baab v. Houser 746 

Babb ti. Motor Co 745 

Babcock v. Case 362 

». Day 750 

V. Emrick , 605 



TABLE OF CASES. 



XXXIU 



[The references 

Babcock v. Lisk 465 

». Wyman 266 

Bachseits v. Leichtiweis .... 146, 156 

Backhaus ti. Backhaus 102 

Backhouse v. Patton 819 

Backler v. Farrow 771 

Backus's Appeal. . . i . . : . . .605, 606 
Bacon's Appeal 99, 100, 102, 105, 860 

Bac'on v. Bronson. 338, 342 

V. Cosby 501 

V. Ransom 140, 212 

H.Taylor 102 

Ba<^ot V. Varnado 284 

Badeley ti. Consolidated Bank 

474, 536 
Baden v. Countess of Pembroke. . 591 

Badger v. Badger. . T 67, 343 

Badgett v. Frick 752 

Badgley v. Bruce 774, 779 

Baer v. BaUingall 548 

ti. English .' 291 

Baggarly v. Gaither 453 

Baglan Hall Colliery Co., /« re. 425 

Baglin v. Cusenier Co ...... 722 

Bagnall f. Carlton 412, 

Bagshaw v. Seymour 353 

V. Spencer 105 

Bagster v. Facfcerell 519 

Bahia and San Francisco By., 

In re. 491, 492 

Bailey's Estate 68 

Bailey, In re 556 

V. Allegheny Nat. Bank.... 524 

V. Bailey 546 

V. Carter 255 

V. Galpih 459 

V. Master Plumbers 387 

». OAtis 366 

V. Pearson 191, 

V. Pittsburgh Coal R. R. 

Co 810 

V. Richardson 462 

V. Ryder 593 

II. Sisson. 764, 768 

«. Tillinghast 658 

Wring. Mach. Co. v. 

Adams 711 

BaJilie v. Baillie. 666 



are to the pages.] 

fiaily-ti. Brownfield :. 549 

V. Homthal 630 

Bainton v. Equip. Co 685 

Baird v. Baird 471 

V. Howard 345 

V. Steame 436 

Baker's Appeal 175, 243 

Baker's Estate. .\ ; 1J.1 

Baker «. Allison ". . . . 620 

V. Baker. ... 120, 124, 137, 150, 
318, 613 

V. Becker 365 

ti. Berry Hill Co 461 

V. Biddle 764 

V. Bradley. . . . , 404 

V. Edwards 547 

V. Fleming '.: 572 

W.Gray 270 

V. Johnson -. 493 

V. Leathers\ 156 

V. Lever 749 

V. Monk 394 

V. Morgans 647 

V. Pyatt 326 

«. Schofield .:. 343 

V. Sebright 683 

V. Vining '. . . 150, 154 

V. White 380 

». Whiting. .. . 172 

V. Williamson 19, 104 

& Co., Walter, V. Gray. . . 723 

Bakewell v. Keller 806 

Bakhaus v. Ins. Co 486 

Balbec v. Donaldson . .'. 153 

Balch V, Beach ; • - 670 

Bald Eagle Valley R. R. Co. v. 
Nittany VaJky R. R. Co. 

612, 732 

Baddockv. Johnson ., 404 

Baldridge v. Coffey.- 835 

Balduff V. Griswold 254 

Baldwin v. Anderson 466 

P.Baldwin. 621 

V. Campfield. . 152, 154, 167 

V. Heil. 422 

V. Johnson 159 

V. Kerlin 609 

V. Kingston. . , 205 



XXXIV 



TABLE OP CASES. 
[The references are to the pages.] 



Baldwin v. Moroney 254 

». Rochford 376 

V. Salter 615 

Balen «. Ins. Co 327 

Bales V. Perry. 485, 491 

BaUw. BaU 832 

V. Liney 661 

-V. Madden 660 

_ !;. MUliken 600 

V. Montgomery 202 

i;. Oliver 865 

V. Ray 704 

V. Setzer. . , . 554 

Ballance v. Underbill .' 316 

Ballard, Inre. . ^ 498 

V. Ballard 590 

V. Jones 257 

V. Taylor 181 

Ballentine v. Harrison 686 

K.White 265 

Ballin v. Dillaye- 189, 190 

Ballinger v. Edwards 377 

Ballou V. Sherwood 617 

Balser v. Lehman 358 

Balsh V. Hyham 245 

Baltic Co. V. Houghton 694 

Baltimore v. Gamble 649 

Baltimore Belt R. Co. v. Lee. . . 685 
Baltimore Humane Society v. 

Pierce 60g 

Baltimore Life Ins. Co. v. Gleis- 

ner \... 739 

Baltimore Sugar Refining Co. v. 

Campbell. 338 

Bamman v. Binzen 610 

Bancroft v. Bancroft 414 

V. Company 389 

p. Comsen 159, 467 

V. Russell 165 

Bangert v. Lumber "Co 312 

Bank i». Adrian 429 

V. Bank 161, 809 

V. Cain 572 

V. Carrolton Railroad 801 

V. Corker 146 

V. D'Yarmett 660 

V. Dubuque 243 

V. Durfey 796 



Bank w. El. Co 481, 491 

V. Fargason 796 

V. Fletcher. 497 

V. Fordyce 296 

V. Goecke 541 

». Hazard 492 

V. Hotchkiss 162 

V. Hunton 548 

V. James 192 

W.Kern 807, 817-850 

V. Kurth 441 

v: Lorwein 549 

V. Matlock 165 

V. McDermid 868 

t). McGraw '. 649 

V. McLoon 287 

V. Opera House Co 544 

V. Prager 355 

V. Read 423 

ti. Rivers 258 

V. Robinson 805 

». School Dist 289 

V. Sprinkle 544 

V. Theatrical Co. 663 

V. Thompson 863 

V. Timmins 265 

V. Tobacco Co 421 

V. Trebein Co 420, 425 

of Columbia v. Hagner . . . 627 
of Commerce's Appeal 272, 294 
of Commerce v. First Nat. 

Bank 553, 555, 556- 

of Hindustan, In re 571 

of Huntingdon v. Simms. 555 

of Ipswich V. Brock 548 

of Ireland v. Perry 570 

of Macon i». Bartlett 442 

of Mendocino v. Baker . . . 464 
of Montreal v. Stuart. . . . 410 
of Mount Joy v. Gish .... 291 
of Overton v. Thompson. . 461 
of Pennsylvania v. Potius. 536 
of United States v. Beverly 566 
of United States v. Biddle 

63, 344, 760 
of United States v. Car- 

rington 153 

of United States v. Daniel 323 



TABLE OF CASES. 
[The references are to the pages.] 



XXXV 



* Bank of United States v. Hous- 

man 167 

of United States v. Huth. . 290 
Commissioners v. Secmrity 

Trust Co .'..' 162 

Bankhead v. Alloway . . 360, 361, 763 

Banking Co. v. Ogbum 224 

Banks v. Bradwell 146 

V. EvansT 751 

V. Gibson . .' 718 

Baniierot v. Brown 377 

Banning v. Sabin 264 

Baptist Assoc, v. Hart's Execu- 

' tors 209, 235 

Church V. Jones ....... 735 

. V. Scannel 737 

Baran v. Tire Co ; 391 

Barbee ». Shannon , . . 685 

Barber, Ex parte 281 

V. Crowell 258 

V. International Co. of 

Mexico 809, 865- 

Barbour v. Barbour 206 

Barclay v. Andrew 241 

Bardes v. Herman 614 

Bardwell v. Perry 796 

Barefoot v. Fry 659 

Barfield v. Nicholson 730 

Bargent ti. Thompson 311 

■ Barger v. Barringer 70^2 

Baring v. Dix 789 

*;. Nash 764 

Barker, Matter of .' 836 

Barker ». Barker 249, 410, 435 

V. Binninger. . . ; 493 

w. Cox 625 

V. Elkins 648 

V. Montana Gold Mine 

Co 369, 409 

V. Vansommer 377 

Barkley v. Donnelly 209 

Barksdale v. Finney 243 

Barkworth v. Palmer 420 

Barnard v. Campbell 480 

t>. Ford 200 

». Gantz 399 

v. Jennison. ^268 

V. Jewett 151 



Barnard v. Kell. 410 

V. Lee 628 

V. No. «& Wor. R. R. 

281, 283 

Barnes v. Alexander 281, 569 

V. Barnes 117 

». Black 423 

0. Jones 865 

t;. Klug 206 

V. Shattuck 293 

V. Starr 343 

V. Taylor 344 

V. Typographical Union . 694 
V. Union Pac. Ry. Co.. . . 360 

V. Wood 592 

Barnet v. Dougherty 355 

V. [lumpike Co 303 

Bamett's Appeal 101, 102 

fearnett v. Barnett 71, 326 

w. Tedescki 703 

Barnett Co. ». Oil Co. 396 

Barnewell v. Cawdor 565 

Barney v. Chamberlain 591 

V. Grover , 296 

V. Saunders 240, 242 

Barnum v. Le Master 181 

V. Traction Co 562 

Barnwell's Estate 209 

Bamy v. Beak 377 

Baron v. Kom 696, 700 

De Worms v. MieUier. . . . 647 
Barr v. Essex Trades Council . . . 693 

V. Hatch . 330 

V. Pittsburgh Glass Co . . . 409 

w. Weld. 231 

Barrell w. Joy 116, 121 

Barrett Chem. Co. v. Stern 721 

Barrett v. Bla^ave 728 

' V. Fish. 674, 716 

. V. Geisinger 599, 601, 602, 603 

V. Hinckley 252 

V. Mt. Greenwood Ceme- 
tery Ass'n 702 

V. Thielen -368 

Barrier v. Kelly .498, 505 

Barroll v. Forman 248 

Barron v. Barron 160, 180, 198, 
206, 207 



XXXVl 



TABLE OF CASES. 



Barron v. Stuart 368 

V. Whiteside 268 

Co. u. Woodruff 351 

Barrow v. Barrow 507 

V. Duplantis 634 

V. Garllardanne 707 

V. Isaacs 328 

V. Rhinelander 377, 409 

w. Wadkin 109 

'Barr's Trusts, In re 294 

Barrs ». Fewkes 521 

Barry v. Abbott 805 

v.mVL 368 

V. Hanson 535 

Barstow v. Mingo Dist r. . . 656 

Barth v. Deuel 57, 327 

Bartholomew v. Bartholomew. . . 771 

Bartle v. Nutt. 538. 

Bartlet v. King .216, 220 

Bartlett v. Gell 622 

V. Pickersgill 148, 149 

Barto's Appeal 419 

Bartol's Estate 237 

Barton's Appeal 238 

Barton v. Barbour ' 19 

V. Dunlap 620 

V. Mayers 323 

». Ry. Co..." ,.. 597 

Nat. Bank w.Atkins.?. . 810 

Bascom v. Albertson 231 

Basket v. Hassell 133 

V. Moss 392 

Baskins v. Giles 181 

Bass V. Scott 102 

Basset V. Nosworthy. . . .69, 70, 447, 
. 450, 453, 454, 455, 457 

Bassett v. St. Albans Co 807 

Basye v. Basye 350 

Batchelder v. Bank 451 

V. Sargent 190 

Batchellor v. Lawrence 532 

Batchelor v. Hinkle 729 

Bate, In re 564 

Bateman v. Riley 592 

Bates Mach. Co. v. Bates 605 

Bates V. Childers 572 

V. City of Hastings 670 

». Conrow 255 



[The references are to the pages.] 

Bates V. Johnson 453 

V. Mayor 670 



V. Norcross 468 

Batstone v. Salter 156 

Battalion West. Rifles v. Swan. . 596 

Bauer v. Bauer 404 

V. Lumaghi Coal Co 601 

V. Myers 230 

Baugher v. Merrynum 260 

Baughman v. Baughman 153 

V. Heinselman. . .671, 677 

Baum ». Baum 206 

V. Grigsby ^74 

». Hartnuum 402 

Baumann v. Kusian 602, 610 

V. Pinckney 590 

Banmgardner v. Fowler. ........ 861 

Baxendale v. Scale 329 

BaxtCT V. Calhoun 610 

V. Deneen 71 

V. Moore 536 

». West 863 

Bayt). Cook 809 

Bay Co. v. BaQe 117 

V. Saunders 688 

Bayard v. Farm^^' & Mechan- 
ics' Bank 451 

V. Hoffman 426, 805, 807 

t>. Norris 463 

Bayley v. Boulcott 119 

t). Greenleaf 573, 576 

BayUes v. Payson ; . . . 857 

Bayliss v. Williams. 401 

Baylor v. Fulkerson 403, 404 

Bayspoole v. Collins 431 

Beach v. Beach 205 

0. Cooke 256 

11. Hayner 688 

Beachey v. Heiple. . . ^ 117, 672 

Beadel v. Perry 638 

Beal V. Smith 413 

Beall V. Fox 226 

W.Stokes 839 

V. White. 281 

"Beals V. Cone 491 

V. See. ., 394 

Beans v. Bullitt 292 

BearTraokMin.Co. I). Claik... 603 



TABLE OF CASES. 
[The referenced are to the pages.] 



XXXVll 



Beare v. Wright 352 

Beasley v. Allyn 596 

V. Bray : . . . .420, 421 

V. Texas & Pac. Ry. Co. 732 

Beatty v. Byers '....'... 525 

t). Clark 331 

Beauchamp v. Winn 321 

Beauclerk v. Mead 622 

Beaumont v. Bramley 325 

V. Carter 200 

V. Meredith 213 

V. Ohveira 217 

Beaupland v.. McKeen 490 

Beavan v. Carpenter 858 

II. Lord Oxford 293 

Beaven v. Stuart 403 

Beaver v. Beaver 537 

^ Lumber Co. v. Eccles. . . 682 

V. Ross 522 

V. Slane 609 

Beck V. Allison 611 

B. Burdett 808 

v. Cricket Club 287 

V. Kantorowicz 413 

V. Ry. Teamsters' Protect- 
ive Union 694 

V. Simmons 752 

Becker's Estate 513 

Becker v. Chester 513 

D. Howard 265 

V. Lipps .,. 59 

V. McCrea 254 

V. McGraw ". 781 

V. Schwerdtle 404 

Beckett v. Aidoiier 420 

p.Heston 317 

Beckford v, Beckford 157 

Beckley v. Eckert 297 

Beckwith v. Comnmsion 721 

Beddow v. Beddow 601 

Bedel v. Loomis 371 

Bedell v. Hoffman 660 

Bedford v. Bedford 521 

w. McDonald 796 

Bedford (Duke of) v. Trustees of 

British Museum 729 

Beebes. Coffin .' 132 

Beecher w/ Wilson & Co 149 ' 



Beedle v. Crane 407 

Beegle v. Wentz. . . 176, 336, 355, 368 

Beekman v. Bonsor 225 

V. Marsters 695 

Beeler v. Barringer 525 

Beeman v. Cooper 468 

.w. Cowser 200 

V. iECitzman 774 

Beer v. Landman 750 

-Beers v. Reynolds. . '. '63 

I). Spooner 292 

Beetson v. Stoops 498 

Beheret v. Myers 601 

Behrend v. Buchmann 685 

Behringer's Estate 97 

Beidler v. City Bank 168 

V. Crane 421 

V. Douglas..'. 808 

Bein v. Heath 642 

Beioley v. Carter 613 

Belcher v. Arnold 806 

V. Big Four Coke Co. . . 762 

I V. Scruggs 860 

Belchier, Ex parte 245 

Belding ». Reid 284 

Belford v. Crane 158 

Belknap v. Belknap '. 860 

». Schild .....677, 709 

D.Tillotson 369 

Bell «. Bliss :.... 71 

V. Anderson. ; 605 

». Dufur 436 

V. Fleming 272 

V. Hull & Selby Ry. Co 686 

V. Lawrence 322 

V. Marsh 489 

V. Mayor of New York 268 

V. Moores 444 

V. Morley 349 

ti. Pelt 584 

v.^ Rawe '. 14 

V. Scranton Co 312 

V. Thompson 626 

w.Twili^t 468 

Bellamy v. Dehenham 616 

«. Sabine 339, 345, 472 

Bellas V. McCarty 463, 457 

Bellasis v. Conipton 116 



xxxvm 



TABLE OF CASES. 
[The references are to the pages.] 



Belle V. Savage 12 

Belleville Sav. Bank v. Reis.,. . . 273 

Bellows V. Stone. 617, 744 

Belshaw v. Bush 646 

Bemis v. Call 494 

V. Upham 701 

Benbow v. Townsend 115 

Bender !>. Bender 117 

V. Kingman 458 

V. Lukenbach 511 

Bendon v. Parfit 464 

Benedict v. Benedict Ill 

V. Lynch 608, 627 

V. Montgomery. . .204, 427 

V. West India Co 671 

Benevolent Society v. Kelly .... 215 

Benf ord v. Sanner 290 

Benham v. Canal Co 628 , 

V. Keane 469 

V. Rowe • 171 

Benjamin v. Elmira R. Co 281 

Benn v. Pritchett . . . ., 548 

Bennerot v. Davidson 607 

Bennet v. Bennet 156 

V. Davis 180 

V. Vade 340 

Bennett v. Bank 543 

V. Burkhalter 600 

V. Chandler. 545 

V. Dillingham 201 

w. Film Corp.' 734 

t). Fuhner 121 

V. Gallagher 513 

ti. Harper - 76 

D.Hyde 628 

V. Ingoldsby 741 

«. Judson.' 350, 360 

V. Minott 808 

V. Union Bank 263 

Bensell v. Chancellor 393 

Benson v. Baldwin 783 

D.Keller 726 

w. LeRoy ,...817-819 

Bent V. Trimboh 691 

Bentley v. Mackay 322, 326 

V. Robson 397 

ti. Tibbets 71 

Benton v. Ger.-Am. Nat. Bank. . 461 



Berberich's Estate 683 

Berdan v. Passaic Commis- 
sioners • - • 671 

Berger v. Smith '. .690, 701; 707 

Bergner w. Bergner 148 

Bergen -v. Johnson 68 

V. Udall 404, 405 

Bergstrom v. Johnson 459 

Berkey v. Coal Co 705 

Berlin Mills Co. v. Poole 293 

Beriinger Gram. Co. v. Seaman . 611 
Bernal v. The Marquis of Done-, 

gal 866 

Bernard v. Bougard 149, 150 

V. Lea 572 

V. MmshuU 142 

Bemer's Estate 242 

Bernhart v. Greenshields 460 

Berry v. Church 555 

!).' Cross 789 

V. French v< 153 

». Frisbie 608 

V. Wiedman 157 

V. Williams 463 

V. Williamson 105 

». Wortham 610 

Berryhill's Appeal. .' 245 

Bersch v. Rust 406 

Bes^nt V. Wood 205 

Bessey v. Windham 428 

Best V. Gralapp 598, 620 

V. Nelson 116 

V. Sinith 424 

V. Stow 617 

Betheil v. Sharp , 355 

Bethlehem Borough v. Persever- 
ance Fire Co 217 

Bethlehem Water Co. v. Bethle- 
hem Borough 78 

Bethune v. Wilkins 686 

Bettendorf v. Bettendorf .'. 408 

Bettes t). Brower 687 

Bettle V. Wilson 207 

Betts V. Betts 265 

V. Connecticut Life Ins. 

Co 76 

V. So. Ga. Ry. Co 59 

Beveridge v. Crawford Mills. ... 587 



TABLE OF CASES. 

* 

[The references are to the pages.] 



XXXIX 



Beverley ». Brooke 862| 864 

Beverly a. Davis 260 

V. Rhodes 814 

Beyer v. Nat. Bldg., etc., Ass'n. 350 

Bezzell ». White 532 

Bibb. L.-L. Co. v. Lima Mach. 

Works 530 

Bibby v. Thompson 120 

Bible V. Marshall 150, 160 

Bickel's Appeal, 66 

Bickford v. Est. of Bickford 158 

Bicking v. Brick Works 700 

Bicknell v. Bicknell. 579 

Biddle's Appeal 140 ' 

Biddle v. Ash 699, 702 

V. Moore 62 

Bidwell V. Pittsburgh 492 

fiiedeman v. Sparks '...., 524 

Bief V. Dyer 13 

Bienville Water Supply Co. v. 

City of 'Mobile 612 

Bierbower's Appeal . . . ; 761' 

Bierce v. The Red Bluff Hotel . . 461 

Biern v. Ray 621 

Bigelow V. Barr 321 

V. Bigelow ,603 

V. Hartford Bridge Co. . 707 

». Sandford 842 

y. Scott 547 

». Willson 256 

V. Wilson 338 

Biggs V. Colby 80 

W.Utah Co 483 

Bigler v. Jack. 263 

v. Penna. Canal Co 642 

Bignold V. Audland 662 

Bill V. Cureton 129, 130 

Billings Vi Aspen Mining Co 322 

Billingslea o. Ward liS 

Bing V. Bank 396 

Bingham v. Madison 327 

Binkley w. Nolt , .. . . . 71 

Binney v. Annan 598 

Binnie v. Walker 809 

Binns v. Vitagraph Co 717 

Birchall, I'nre 236 

Bu-cher v. Walther 161, 162 

Birch V. EUames , 465 



Bird C. & I. Co. v. Humes 409 

Birdsey v. Butterfield 350 

Birdseye v. Village of Clyde 668 

Bu-dweU V. Cain 173 

Birkery Mfg. Co. v. Jones 598 

Birkley v. Presgrave 540 

V. Suydam 539 

Birmingham v. Forsythe 531 

Birmingham Ry. Co. ». Louis- 
ville R. Co 146 

Birmingham Ry. v. Hinton 394 

!). Moran 691 

Birmingham Tract. Co. v. Bir- 
mingham Ry. & 

Elec. Co 689 

V. Rirwan 501 

ii. Sou. Bell Tel. Co. 737 
Bisbee v. Arizona Ins. Agency ... 59 

Biscoe V. Jackson 223 ' 

V. Thweatt 216 

. Bishop ». Banks .703, 704 

V. Breckles .788, 789 

V. Chase 296 

W.Day 537 

t). Reed 326 

Bishop Bailey Ass'n v. j^ennedy. 555 

Bishop of Ely v. Kenrick 782 

Biss V. Hygate 621 

Bissel V. Warde 488 

Bissell V. Foss 170 

V. Peirce 789 

Bittenbender v. Sunbury & Erie 

R. Co 283 

Bitterman v. Louisville & Nash- 
ville R. R 64,' 634 

Bitting's Appeal 696 

Bitzer v. Bobo 161 

Bixby V. Eley 331 

Black's Appeal 795, 799 

Black V. l^ohlen 850 

W.Boyd 760 

w. Maddox i. 609 

V. Miller 600 

w. Phila. & Read. R. Co... 690 

w. Riley. . .\ ..,. 407 

V. Shreeve . 7. '.\ 532, 533 

w, Simpson 410 

V. Suydam 53S 



xl 



TABLE OP CASES. 
[The references are to the pages.] 



Blackburn v. Blackburn 120 

V. Stables 105 

Blackett v. Bates 611 

V. Lamb 603, 506 

Blackmore v. Shelby 403 

Blackstock v. Robertson 265 

Blackstone Bank v. Davis 110 

Blackwell v. Blackwell 83 

Blackwilder v. Loveless 600 

Blackwood v. Lond. Chartd. 

Bank of Australia 69, 453 

Blagen v. Smith '. . . . 703 

Blahnik v. Impr. Co 752 

Blain v. Chippewa 61 

Blair v. Duncan 227 

' <;. IlUnois Steel Co 808 

V. Heading „ . . . 647^ 

Blake v. Blake 172 

». Exchange Ins. Co.. 484, 486 

V. Heyward; 453 

v.'Langdon 529 

». O'Neal 102 

V. State Savings Bank. . . . 162 
• V. Traders' Nat. Bank. ... 548 

Blakeley v. Patrick 279 

Blakely v. Sousa. . 287, 719 

V. Sumner ._.... 621 

Blakempre v. Glamorganshire 

Canal Navigation . '. 634 

Blanchard v. Cooke. . \ 283 

V. Detroit, Lansing & 
Lake Mich. R. 

Co 611 

». ffiU 718 

V. McDougal 621 

P.Tyler.. 457 

V. Williamson 344 

Blanchet v. Foster 433, 434 

Blandy v. Widmore 821 

Blane, Ex parte 161 

Blau V. Tire, etc., Co 752 

Blauvelt v. Ackerman. . 151, 173, 243 

Bleckeley v. Branyan 273 

Bleight V. The Bank. , 612 

Blenkinsopp v. Blenkinsopp .... 419 

Bless V. BUzzard 599 

Blick V. Cockms 369 

Bhght's Heirs v. Banks 576 



Blight V. Schenek 245 

Bliss V. American Bible Society. 216 
V. Anaconda Copper Min. 

Co. 636 

V. Cemetery Co. . v 572 

V. Jenkins 699 

f. N. Y. Cent. & Hud. R. 

R. R. Co 346 

V. Smith 761 

V. Washoe Copper Co 636 

V. Waterburg 491 

Blissett V. Daniel 786 

Block V. Crockett 653 

V. Shaw 282 

Blodgett V. Foster 760 

w_Hildreth 151 

Blomen v. Barstow 636 

Blondell v. Consol. Gas Co 685 

Blondheim v. Moore 863 

Bloodt). Beal.. ... 670 

V. La Serena Land, etc., 

Co 480 

Bloomfield ». Stowe-market .... 222 
Bloomfield Gravel Min. Co. v. 

U. S 691 

. State Bank v. Miller. 579 

Blount V. Spratt 394 

Blue V. Patterson 340 

Blue Jacket Copper Co. v. Scherr 669 
Bluegrass Realty Co.y. Shelton. . 600 
Blue Point Oyster Co. v. Haagen- 

son 611 

Blume V. Mach. Co 654 

Blundell v. Brettargh. 600 

Blunt V. Patten 713 

BIygh V. Samson 364, 750 

Blystone v. Blystone 429 

Blythe v. Warner. 860 

Boal 0. Moigner 182 

Board t^. Carrier Co 707 

Board v. Spangler 64 

of Commrs. of Rush Co. 

V. Dinwiddle 209 

of Education ti. Dupar- 

quet : 293 

«. Guy, County Auditor. 669 
of Montgomery Coimty v. 
Elston 74 



TABLE OF CASES. 



Xli 



[The references are to the pages.] 



Board of Trade v. Christie 

Grain Co 715 

V. United States 392 

of Trustees v.- Postel 160 

Boardman v. Jackson. ........ 341 

V. Meriden Britannia 

Co....; 722 

Boarman ». Catlett 257 

Bobbi). Wolff 265 

Bobbs-Merrill Co. v. Straus 712 

Boddie ». Brewing Co 651 

Boddy V. Henry 361 

Bodine v. Glading. 311, 608 

Bodkin v. Arnold 487 

Bodwell V. Heaton 744 

Boelk V. Nolan 350 

Boerum v. Schenck 173, 243 

Bogard v. Barhan 617 

Bogert V. Hertell 514 

Boggs V. Anderson 470 

V. Dundalk Realty Co. . . . 610 

V. Halloway 396 

w. Vamer 468, 470 

Bogie V. Bogie. . . .'.'; ..........; 405 

Bogut V. Coburn 256 

Bohannon v. Travis 204 

Bohart v. Chamberlain 304 

Bohle V. Hasselbroch 160 

Bohlen v. Black 690 

Bohn V. Headley '. 432 

Boid V. Dean .• . 425 

Boise V. Benham '. 574 

Boise Water Co. v. Boise City 59, 669 

Bokee v. Walker T. . 347, 362 

Boland v. O'Neil 204 

., V. Tiemay 510 

Bold V. Hutchmson 107, 745 

BoUn V. Wilkes 265 

Bolland v. O'Neal 463 

Boiling V. BoUing .-764 

Bollo V. Navarro 767 

Bolmen v. Barston , 704 

Bolognesi AL, In re 160, 162 

Bolsa Land Co. v. Burdick 687 

Bolton V. Bolton 767 

Bomer Bros. v. Canady 610, 612 

Bonaparte v. Cam. & Amboy R. 

Co....- 689 



Bonaparte v. Denmead 707 

Bond ». Buntmg 126, 131 

V. Little 656 

ti. Nurse .-.,... 89 

Bonfils V. Ledoux 312 

Bonrf aci v. Thompson 64 

Bonner v. Bonner 199 

, V. Great West. Ry. Co; . 638 

Bonney ». Seely 533 

Bonniwell v. Madison 313 

-Bonodyn v. Arundell 13 

Bonsai v. Randall 404 

Boogren v, St. Paul Ry. Co 287 

flooher v. Browning 685 

Booker v. Booker. . . .^.' 469 

!). Wingo. . ..'..-...750, 752 

Bookout V. Bookout 436 

Boon V. Gouch 379 

Boone v. Boone 767 

y. Chiles 453 

W.Lee 176 

Co. V. BurUng. & Mo. Riv. 

R. R. Co 66 

Booten v. Scheffer 606 

Booth V. Baptist Church 231 

D. Booth 247, 672 

W.Clark 862 

D.Wiley 484 

Bootle V. Blundell r 565. 

Borah ». "Archers 771 

Borcherling v. Ruckelshaus 647 

Borden ;;. White 395 

Borell V. Dann 603 

Borer v. Chapman.. 819 

Borie v. Satterthwaite- 590, 592, 651 

860 

Borley «. McDonald 308 

Bom V. Schrenkeisen 325, 744 

Borrow v. Rhinelander 763 

Bosanquett v. Dashwood 378 

Bosch Co, ^.Tlushmore 308 

BoSchulte V. Dist 637 

Bostock V. North Stafford R. 

Co 698 

Boston V. Doyle 236 

Boston Diatite Co. v. Florence 

Mfg. Co. 64, 739 

Iron Co. V. King 268 



xlii 



TABLE OF CASES. 
[The references are to the pages.] 



Boston & Maine R. R. Co. v. 

Sullivan 685 

Boston & Montana Con. C. & S. 
Mining Co. v. Mon- 
tana Ore Purchasing 

Co ; 659 

Boston Co. V. Boston Co 313 

Bostwick V. Atkins 403 

Botsworth V. Jacksonville Nat. 

Bank .< 288 

V. Packet Co 74 

Botifeur v. Weyman.. 763, 764 

Botsford '«. Beers 420, 805, 809 

'w.Burr 150, 152 

V. Wallace 59 

Boughman v. Boughman 154 

Boughton V. Boughton. .' 566 

Boulden v. Wood 325 

Bouquet v. Heyman 424 

Bourne v. Bourne 512 

V. Farrar 278 

V. Lumber Go 700 

V. Swan & Edgar, Ltd.. . 718* 

Bourquin v. Bourquin 456 

Bouslough V. Bouslough 428 

Boutin V, Etsell 533 

Boutwells V. Realty Co 60 

Bouverie v.^ Prentice 782, 783 

Bowden v. Bland. . . .' 742 

Bowditch V. Andrew 98 

Bowdre v. Carter 75 

Bowe V. Bowe 405 

Bowen v. Edwards 260 

t). Hall 730 

V. Hoskfns 534 

V. Matheson 387 

V. Wolff 402 

Bower v. Bagley 610 

Bowers v. Hutchinson 206, 207 

V. Oyster , . . 579 

Bowes V. Seeger .'.,. .245, 247 

Bowlby V. Thunder 137 

Bowling V. Bowling. . 856 

Bowman- v. Hern. 159 

V. Wathen 460 

Bowser v. Cessna 30 

.O.Colby 311 

Box V. Barrett 501 



Boxheimer v. Gunn 465 

Boyce v. Burchard 790 

W.Grundy 24,62, 341 

V. Kelso Home 510 

Boyd, Ex parte . . .■ 851 

Boyd V. Bondy 491 

V. Brown 609, 619 

V. Dunlap 375 

V. McDonough 532 

V. McLean 153, 154 

Boykin v. Ciples 180 

V. Jones 472 

V. Patterson 642 

Boylan v. Wilson 613 

Boyle V. Adams 355 

Boyle ». Dinsdale 117 

V. Maroney 805, 865 

V. Zacharie 24 

Boylen v. Leonard 279 

Boynton v. Boynton 507 

V. Hall 699 

V. Housler..! 355, 368 

V. Hubbard. .373, 375, 380, 
392 

V. Milnes 634 

V. Pajrrow 583 

V. Rees 456 

Boyse v. Rossborough 394, 858 

Brace v. Duchess of Marl- 
borough 271 

Braoebridge v. Buckley 3U 

Bracken v. Miller 455, 460, 461 

Brackenbury ». Hodgkin. ..il6, 117 

Bradfield v. Elyton Land Co 350 

Bradfield v. Sewall 539 

Bradford v. Burgess 274 

V. Furniture Co. . .384, 732 

V. Greenway 190 

V. New York & Pa. T. 

& T. Co 68 

V. Union Bank 617 

Banking Co. v. Briggs . 271 

BradJsh v. Gibbs 204 

Bradley v. Carritt 262 

V. Chesebrough 162 

V. George 539 

t). Gill 704 

». Heyward... 603 



TABLE OF CASES. 



xliii 



[The references are to the pages.] 



BracUey v. Lightcap .... 7 255 

V. Norton 717 

Bradley Co v. Bradley 72 

Bradsher v. Lea,. 701 

Brady's Appeal. 394, 607 

Brady v. Brady 203 

V. Waldron 682 

Bragg V. Patterson 544 

Braham v. Bustard '. 718 

Brainard v. Holsaple. 752 

Braithwaite ». Henneberry 57 

Bramwell v. Laey , 729 

Brand v. Power 356 

Brandaw v. McCurley 180 

Brandon ». McKinney 524 

V. Medley 322 

V. Robinson 110 

Brandreth v. Lance 714 

Brandt ic. Mickle 181 

Branningan v. Murphy 217 

Brannon v. Hayes 394 

Eirant v. Brant 429 

Brantley », West 154 

Brashier v. Gratz 627 

Brass & Iron Works Co. v. 

Payne 673 

Bratton v. Rogers 463 

Braun v. First Grerman, etc., 

Church.... 368 

Bray v. Booker 572 

Breard v. Munger 610 

Breaux v. Royer 747 

Breck v. Smith 869 

Breckenridge v. Brooks. ... 268 

V. Ormsby 393 

Breckinridge v. Taylor 531, 533, 535 

Breden v. Gilliland 564 

Bredesen v. Nickolay 623 

Breit v. Yeaton. 331 

Breadle v. German Ref. Cong. . . 218 

Brennaman v. ScheU 158 

Brenneman v. Dillon 203 

Breese v. Bradfield 371 

Bressler v. Kent 189 

Brett V. Carter. 281, 283 

p. Cooney 366 

Brew V. Van Deman 732 

Brewer 0. Boston (itW. R. Co., , '489 



Brewer v. Fleming 589 

V. Harrison. 172 

V. Herbert 303 

V. Mtge, Co 539 

Brewing Co. v. Beer Co 721 

V. Wasson 543 

Briant, In re 201 

' Brice v. Brice 394 

W.Stokes 246, 247- 

Brickey v. Linnertz 69 ' 

Bride v. Baker 482 

Bridesburg Mfg. Co.'s Appeal. . 662 

Bridge v. Kedon 373 

Bridgeford v. Masonville Mfg. 

.Co! ;....' 305 

Bridgeport Electric & Ice Co. v. 

Meader .'. 75, 76 

Bridger's Case ■. . . . 488 

Bridger v. Bank 471, 472 

V. Goldsmith " 486 

Bridges v. Linder 263 

V. Robinson. 726 ' 

Bridgewater Mills v. Strough . . . 555 

Bridgman v. Green 171, 416 

Briggs V. Law. 732 

V. Light-boats 90 

W.Penny.. 121, 136, 139, 142 

». Planters' Bank 553 

w.'Sanford 421 

V. Spaulding 409 

V. United Shoe Co.. . 24 

Bright V. Allan : 700 

». Boyd. > 315 

«. Bright 131 

V. Legerton 248 

V. Newland ^ 62 

Brighton v. White T 82 

Brinkerhoff v. Brinkerhoff 495 

V. Marvin.. 272, 554 

Brinkley a. Brinkley 436 

Briscoe v. Coulter 254 

-v. Price 150 

Bristol (Town of) v. Bristol and 

Warren Water Works 610 

Bristol, etc., Co. v. Bristol 737 

Bristor V. Tasker 99, 129 

Bristow !). Warde 504 

V. Whitmore 367 



xliv 



TABLE OF CASES. 



[The references are to the pages.] 



Britain v. Rossiter 618, 619 

British Empire Shipping Co. v. 

Somes 62, 303, 843 

British Museum Case 729 

British So, Africa Co. v. De Beers 

Mines 262 

Brittain v. Lohr 421 

Brittin v. Partridge 294 

Britton !). Hill 687 

V. Lewis 172 

V. Royal Arcanum ...'.. 57 

Broad w.Selfe 262 

Broadway Nat. Bank v. 

Wood 796 

Broadwell v. Broadwell 320 

Brobst V. Brock 258 

Brock V. Barnes 399 

V. 'Conkwright 235 

V. Cook. . 620 

Brocklesby v. Temperance Perm. 

Building Soc 431 

Broddesworth v. Coke 14 

Broder t;, Conklin 369 

». Saillard 697, 704, 705 

Broderick's Will (Case of) 340 

Brodie v. Barry. ., 500 

Brodsky v. Nelson. .'. 861 

Brodgden, Inre 237, 249 

Brogden v. Gibson 176 

W.Walker 384 

Bromley v. Holland 63, 306, 750 

Bronk ». Riley 733 

V. State 870 

Bronson v. Cahill 608 

V. Leibold 318, 398 

Brook V. Badley 516, 517 

Brookes v. Cohen. 437-438 

Brookfield v. Williams 771 

Brooklyn White Lead Co. v. 

Masiiry 725 

V. Brooks 344 

Brooks V. Curtis 487 

t). Fowle 149 

V. Hatch , 278 

V. Martin 72, 429 

V. McMeekin 436 

V. Norcross , 710 

t). R. R. Co 490 



Brooks V. StoUey 57 

t>. Wheelock 617, 624 

Brooksville'Co. v. Latty. ....... 288 

Broome v. Telep. Co 638 

Brotherton p. Weathersby 149 

Broun v. Kennedy 398 

Brower v. Kantner 61, ' 677 

Brown's Appeal 647, 699f 

D. Armistead 318 

V. Bank 255 

». Bateman. . . . 279, 281 

V. Bellows 311 

i>. Brown.. 71, 121, 498, 

507, 547, 607, 822 

V. Budd..., .~468 

V. Burbank 402 

B.Caldwell ^ 501 

V. Case 413 

W.Clark ."........ 204 

«. Clifford -. 266 

f . Combs 120 

V. Concord 225 

V. Condit 225 

. V. County of Buena Vista 443 

V. Crawford 256 

V. Dail 283 

V. Davis , 73, 497 

V. Desmond 593 

V. Dysinger. . 355, 368 

' V. Equitable Life Aasur. 

Soc 297 

». Fisk 810 

W.Fletcher ".375, 376 

V. Gaffney 260 

ti. Gilliland. : 595 

V. Gilman 574 

V. Green. ■. . . . 289 

V. Griswold 592 

V. Guarantee Corp 351 

W.Hall. .^ 371 

V. Hendrickson 529 

w. Higgs 143, 144 

w. Hurd 647 

V. Johnson 182 

w. Jones 163 

w. Kausche. 153 

w. Lake Sup. Iron Co..75, 809 
V. Lead Co 350 



TABLE OP CASES. 
[the references are to the pages.] 



xlv 



Brown v. Leach 365 

V. Long 808 

V. Lord Say's Widoty. ... 13 

V. Lyon 572 

V. Mayor 64 

V. Mi>Donald. . •812, 813, 844 
V. Meeting St. Baptist 

Sob.. 231 

V. Miller 525 

V. Norcross 699 

V. Norman 339, 443 

V. Peabody 687 

V. Phillips 330 

V. Pinninger 615 

V. Poeock 143 

T). Ray 542 

V. Rice 357 

II. Rieketts 239, 498 

V. Runals! .. 7 .... J 683 

V. Savings Bank 268 

V. South Joplin Lead Co. 350 

V. Stewart 255, 859 

V. Tanner.- 281 

V. Vandergrift ^ . 314 

V. Vandyke' 763 

V. Van Winkle 599 

v: Wabash Ry. Co 81 

V. Wadsworth 198, 201 

V. Wales 846 

V.Ward 69, 744 

». Webster 599 

V. Williamson's Ex'rs 110 

V. Wright 239 

Brown et al. v. Canal & Reservoir 

Co.. 657 

Brown & Sons v. Railroad. ..... 606 

Brownback v. Keister. ........ 860 

V. Ozias 466 

Browne v. Niles 704 

V. Penis 274 

V. Trustees of BaJt. 

Church 487 

V. Skarkey Co 287 

Brownfield's Appeal 408 

Brownfield v. Bookout 157 

Browning v. Lavender 861 

Brown, Randolph Co. v. Gude. . . 744 
Brua's Appeal. 379 



Bruce, Elx parte. . :...., 578 

V. Bibb 406 

t>. Burdet 760 

<>. Child 344 

V.Edwards 552 

V. Hoidal 808 

«. Meserve 621 

». Moon. 598 

V. Slemp 158 

». Tilson 628 

Bruck V. Tucker. . .'. 606 

Brucker v. De Hart ; . . . 154 

Brudenell v. Elwes 222 

Brune v. Tomlehn 619 

Bruner's Appeal 242, 553, 556 

Brunerj). Finley. .^ 174, 443 

Bruiis(Jen v. Woolredge ........ 214 

Brunson ». King 140 

Bruton v. Rutland 767 

Brutsche v. Bowers .». . . 71 

Bryan v. Bigelow 118 

V. Bradley. . 102 

V. Bryan. 198 

V. Douds *• 149 

V. Hitchcock ,. . . 365 

V. Long. 647 

V. Masterson 322 

V. Mayor ;•. 667 

ti. McCaskill 176 

V. McNaughton 148 

«. Nulby.. 137 

Bryant v. Peck & Co 397 

& Bamingham's Con- 
tract, In re 615 

p. West 685 

Bryar's Appeal 274 

Brydges v. Brydges 20 

Brymer v. Buchanan 664 

Bryson v. McShane 622 

V. Peak 627 

Buchan v. Sumner 791, 792 

Buchanane. Adkins.. .657, 727, 860 

». Gibbs 398 

. V. Hubbard 494 

V. Marsh 727 

V. Moore 482, 489 

w. Turner.. 190 

Buohner, In re 255 



xlvi 



TABLE OF CASES. 



[The references are to the pages.] 



Buck V. HoUoway 470 

W.Pike 146, 153 

«. Smith 611 

V. Swazey 288 

Buckers Irrigation Co. v. Fann- 
ers' Ditch Co 18 

Buckhout V. Witwer 599 

Buckingham v. Clark 369 

V. Ludlow 444 

Buckland v. Pocknell 575 

Buckle V. MitcheU 431, 447 

Buckley v. Corse 642 

». Daley 255, 258 

V. Duff r 424 

V. Geraty 675 

Buck Mountain Co. v. Lehigh 

Co '. 707, 738 

Buckner v. Calcote 345 

Buel V-. Miller 623 

Buell V. Gardner 228 

Quena Vista Co. v. Billmyer. . ; . 350 

" ti. Tuohy 74 

Buffalo V. Balcom 314 

Buffalo, etc., Co. v. Vance 606 

Bufordw. McKee 602 

Bugg V. Seay 457 

Building Ass'n v. Blair 443 

V. Fellers 555 

Buja, Inc. v. Buye 649 

V. Oram. 546 

BuU V. BuU. . . .' 137, 139, 816 

V. Vardy 144 

BuUer v. Plunkett ; . . . 294 

BulU Coal Mining Co. v. Os- 
borne 68 

Bullock w. Boyd 762, 764 

V. Cbrry 848 

V. Griffin 780 

Bullowa V. Orgo. 578, 579 

Bulow V. Witte 835 

Bulows V. The Committee of 

O'Neall 644 

Bumgardner v. Leavitt 595 

Bumpus ti. Platner 456 

Bunbury v. Bunbury •. . . 666 

Bunce v. Gallagher 751 

Bunch V. Grave 272 

Bundy v. Sabin •. . 325 | 



Bunn V. Winthrop 124 

Bunnell's Appeal .690, 707 

Bunnell v. Bronson 429 

Burbank v. Whitney 235 

Burch V. Breckenridge 190 

Burd Orphan ^ylum v. School 

District 215 

Bin-ger v. Burger 292 

Burgess v. Burgess 722 

». Wheate . . 93, 108, 109, 243 

Burgoon v. Johnson 308 

Burk's Appeal 609 

Burk V. Adams 496 

Burke v. Burke .216, 217 

». Cassin. . 725 

V. Mackenzie 318 

e. Mead 610 

V. Murphy 65, 255 

V. Snively .". . 670 

'Burkholder's Appeal 323 

Burkmaster ». Thompson 610 

Burland v. Earle 414 

Burleigh ». Palmer 671 

Burleson v. Stewart. . _. 744 

Burley, In re 135 

Bum V. Carvalho. . 289, 293 

Burne v. Partridge 67 

Bumell V. Bradbury 620 

Burnett v. Wright. 265 

Burnham v. Bowen 560, 562 

Burnley v. Thomas 183, 191 

Burns v. Caskey 334 

V. Grain Co 387 

V. Huntington Bank. ..... 535 

W.Smith 598, 622 

Burnwell Co. v. Stetzer 420 

Burr w. Sim 521 

W.Smith... 216, 225 • 

Burrall w. American Telephone 

Co 685 

Burrell w. Nicholson 846 

w. Root 593 

Burrill w. Whitoorab 283 

Burris w. Landers 603 

V. Rodrigues 685 

Burrow v. Ragland 340 

Burrowes w. Lock 362, 490 

Burrows w. Leech ^ 57 



TABLE OF CASES. 
[The references are to the pages.] 



xlvii 



Burrows v. McWhann 533, 544 

Burt V. Hellyar 767 

V. Herron 137, 139 

V. Tucker 725 

Burtch V. Elliott 428 

Burton v. Black 660 

V. Campbell 278" 

w. Haden, . .-^ 318, 321 

V. Landon 598 

Burwell v. FaubCT , 548 

K. Smitii 472 

Busch V. Gross 722 

Buset). Page 263 

Bush's Appeal 98, 100, 102, 194 

Bush t). Allen 181 

V. Boutelle 76 

«. 'Golden , 470 

V. Lathrop , 297 

V. Marshall ". 573 

V. Stanley 153 

Bush Co. V. Conely 489 

Bushnell v. Harford 751 

Bushong V. Rector 644 

V. Taylor 544 

Busiere v. Reilly 322 

Buskirk v. Peck. : . . 813 

Bussman v. Ganster 303 

Butch V. Lash 651 

Butcher v. Kemp 501 

V. Yocum 460 

Butchers' Co. v. P. & R. R. R. . 

Co 612 

V. L. & N. R. R. 

Co 636 

Bute (Marquis) v. Glamorgan-: 

shireCdnal Co. 782 

Butler, Inre 344 

Butler I). Bell 345 

V. Birkey 549 

iirBorroum 686 

V. Burleson 731 

» V. Butler 202^ 

V. Duncan 373 

V. Foresters 493 

V. Freeman ^. . . . 864 

V. Gleason 410 

V. HaskeU.. ... .344, 371, 373 

V, Hicks 169 



Butler -». Ins. Co 158 

e. O'Hear 613 

V. Prentiss 400 

». RaihoadCo 287 

V. Rogers 701 

V. Stevens 460 

Butman v. Hussey 328 

Butsoh V. Smith. 265 

Butt, Ex parte 289 

Butt V. EUett.. ., 283 

Butte and Boston Min. Co. v. 

Montania Ore Purchasing. Co . 684 

Butterfield v. Klaber 704 

». NbgalesCo...... . 78 

Buttricke v. Brodhurst. 507 

Buxton V. Lister 595 

Buyer v. Guillan : 392 

Buzard it. Houston 24, 341, 342 

Byard v. Holmes 349 

Byers v. Danley 153 

w.^Surget 371 

Byrchall v. Bradford.. 242 

Byrne «. Brown.j 647 

«. Byrne.. 822 

V. Jones 78 

V. Nat. Bank 745 

V. Stewart 350 



Cabada v. De Jongh 289 

Cabbell v. Williams 693 

Cabe V. Watt 636 

Cabeen v. Breckenridge 463 

Cable w. U. S. Life Ins. Co 61 

Cabot V. Christie 361 

Cabrera v. American Bank 265 

Cadbury v. Duval. . 819 

Cadematori «. Gauger 182, 190 

Cadigan v. Brown 63, 655 

Cadman v. Homer 70 

Cadogan v. Kennett 418 

Cadwalder's Appeal 175, 605 

Cady V. Potter.. 660 

Caffee v. Berkley 413 

Cahill V. Applegarth 363 

Cain V. Hubble 792 

V. Hunt 441 



xlviii 



TABLE OF CASES. 
[The references are to the pages.] 



Cain V. Moon ". 132 

Cairo, etc., R. Co. v. Titus 647 

Calalan ». Inv. Htg. Co. 611 

Calder v. Chapman 478 

Caldwell, Ex parte 294 

Caldwell v. HaU 268 

p. Hartupee 289 

V. Insurance Co 606 

V. Knott 699 

»." Williams 131, 602 

Caledonia Ins. Co. v. Northern 

Pacific Ry. Co 642 

Calhoun v. McConaghey 256 

W.Millard... • 68 

California v. McGlynn. 340 

California Fruit Ass'n v. Stelling 453 

Callahan v. Spicer. 648 

CaUanan w. R. R. Co 75, 441 

Callaway v. Webster 687 

Callis V. Waddy 345 

Calverly v. Harper 320 

Camblos v. Philadelphia & Read- 
ing R. Co 637 

Cambria Iron Co. v. Union Trust 

Co 561 

Camden v. Dewing 148 

0. VaiL 574 

Cameron & Wells, In re 422. 

Cameron v. City of Carbondale. 636 

«. Parish 501 

Camors Co. v. McConnell 72 

Cajap V. Bostwick 534 

». Boyd 57, 76 

V. Dixon 688 

V. Society 215, 226 

Campau v. Van Dyke 343 

Campbell's Appeal 436 

Campbell's Estate. 131 

Campbell v. Association 461 

V. Brackenridge 453 

W.Brown ., . 119 

V. Bryant 668 

P.Clark 323 

V. Day 295 

V. Ernest 653 

V. Foster Ill 

V. Foster Home.. .546, 547 
V. Freeman 620 



Campbell v. Johnson 243 

V. Leach 331 

w. McLain 173, 416 

V. Mesier 531 

ti. Moore 369 

». MuUett 795 

V. Murphy 779 

V. Rust 631, 755 

w. Seaman.... 63, 703, 705 

»; Telephone Co 463 

V. Walker 173 

V. Wireback 713 

Canadian Religious Ass'n v. Par- 

menter 735 

Canal Commrs. v. Sanitary Dist. 

604, 605 
V. Village of East 
Peoria.. 671, 677 
Canal Company ». Clark. . .721, 724 

, V. Sansom 311 

Canavan v. Paye 19 

Cancellation Sun Co. v. Vinton 

Co 327 

Candler v. Heigo 364 

Canedy ti. Marcy. . . .' 334 

Canfield v. Bostwick 565 

Canley v. Sutton 257 

Canning v. Canning . .' 770 

Cannon v. Barry 680 

e. Collins 620 

V. Hudson 553, 554, 572 

V. McNab 62 

Canterbury Aqueduct Co. ». Ens- 
worth 605 

CantweU v. Johnson 647 

Cape V. Plymouth Cong. Church 735 

Cape Breton Co., In re " 414 

Capen v. Garrison 547 

Capers v. McCaa. 152 

Caplan v. Buckner 607 

Caplinger v. Stokes 159 

CapUn's Will, In re 143' 

Garbery v. Western 855 

Carbin v. McAllister 428 

Carbon Fuel Co. f>. Chicago R. R. 

Co 562 

Car Co. V. Magneto Co 666 

Carew i>. Rutherford 387 



TABLE OF CASES. 
[The references are to the pages.] 



xlix 



Carey v. Mackey 207 

Carhart's Appeal 124 

Carley v. Graves 160 

Carling's Case .' 415 

Carlisle v. Cooper. 696, 700 

V. Jumper 453 

V. Stevenson 637 

Carlon, Ex parte 290; 

Carlton v. Hulett 346 

P.Salem 63 

Carman v. Bumpus.. 194 

Carmen v. Fox Co 71, 728 

Carney v. Carney 128 

Carpenter v. Carpenter 495 

V. Cushman 120 

ti. Danforth 409 

V. Hanes 667 

V. Jones 318 

». Mitchell 189 

V. Mut. Ins. Co. . . 594, 597 

V. Plagge. . .-. ... 74 

V. Snelling 264 

V. Winn 843 

C'. & A. R. R. V. Keegan 494 

Carr v. Briggs 421 

V. Davis 537 

V. Eastabrooke ; 200 

■^- V. Graham . . '354 

V. Kissimee 744 

V. Nat. Bank, etc., Co 359 

V. Products Co 394, 395 

». Rising 264 

Carrington v. Didier 813 

Carritt v. Real & Pers. Adv. 

Co 84 

Carroll v. Johnston 453 

B.Lee 181 

W.Smith ?.. 128-129 

Carron Iron Co. v. Maclaren . . . 666 

Carrow v. Headley ; 274 

Carson v. Allegany Glass Co. . . . 866 

0. Broady 766, 771 

/ V. Carson 136 

V. Dunham 667 

V. Fuhs 100 

V. Murray 207 

V. Painter 153 

Carswell v. Lovett 194 



Cartan ». Phelps 

V. Ayer 

Carter v. Becker 

V. Boehm 

V. Carter 154, 200, 206, 

w.Challen 147, 

V. City of Chicago ...... 

-«, Farthing 

II. Ferguson 

». HaU ; 

V. Jones 

V. Nichols 

». Tanners' Leather Co... 

V. Taylor 

, v. Thompson.' 173, 

V. Woolfork ,. . 

Carter-Crume Co. v. Peurrung. . 

Carthew ». City 

Cartwright v. Green 

V. Wise 

Caruthers v, Humphrey 

Cary v\ Askew 

V. Cary .^ 

Casborne v. Scarfe.-. 

Casciola v. Donatelli 

Case of Jesus College 

Case V. Abeel .' 

V. Beauregard 

V. Case ' 

V. Fishback ^ • 

V. Gerrish 

V V. Goodman 

V. McCabe 

V. Peters 



Casern v. Heustis 

Casey ». Casey 

V. Cincinn. Typogr.Union. 

Casler w.- Thompson 

Caspari v. First German Church 

Cass Co. V. Oldham 

Cassedy v. Jackson 

Cassel V. Lowry '..... 

Casteel v. Flint '. 

Castle V. Kemp 

». Secretary 

V. Wilkinson 



265 
.660 ' 
157 
359 
207, 
771 
464 
737 
572 
733 
482 
545 
288 
556 
767 
416 
860 
386 
636 
844 
156 
254 
500 
'401 
254 
151 
216 
794 
808 
371 
303 
430 
466 
582 
334 
159 
265 
163 
739 
620 
399 
323 
2^6 
572 
124 
750 
670 
626 



TABLED OP CASES, 
[The references are to the pages.] 



Castlehow, Inrer. 240 

Castleman v. Brucker 353 

». Veitoh 764, 767 

Gaston v. Gaston 506 

Gaswell v. Davis 721 

Gater v. Eveleigh 191 

Gathcart v. Robinson 431, 447, 589, 

630 

V. Nelson's Admr 120 

Gatherwood v. Watson 157 

Gatlin v. Hinton 254 

Caton V. Caton. 356, 622 

Gatskill Bank v> Dumary 549 

Gaughey v. Bridenbaugh 407 

Caughron v. Stinespring 870 

Gaulfield v. Van Brunt 283 

Cavander v. Bulteel. 462 

Cave V. Gave .452, 458 

Cazallis v. Ingraham 124, 128 

Gecil National Bank v. Thurber 

162, 163 
Cellular Clothing Co. ;;. Maxton 

719, 725 

Cemetery v. Trust Co 129 

Gontaur Co. v. Link 718 

V. Marshall. ., 720 

V. Neathery 720 

Central Go. v. Americus Co 701 

V. Bank 654 

Central Land Co. v. Obenchain-. . 412 

Ry. Co. V. Macon 531 

Salt Co. V. Guthrie.'. . , . 389 
Trans. Co. v. Pullman's 

Car Go. 389 
Trust Go. V. Continental 
Trust Go. 

386, 8X9 
V. B. & O. & 

C. R. Co. 480 
V. Ohio Cent. 

R. Co.. . . 283 
V. Respass. ... 71 
V. West India 
Imp. Go. 279, 
281, 282, 295, 
2^7, 298, 452 

Gemy v. Faxton 357 

Getenich v. Fuvich 153 



Chabot ». Winter Park Go 605 

Ghadwick v. Arnold 149 

». Chadwick 608, 612 

». CoveU 720 

V. Manning 482 

V. Turner 469" 

Ghadwick Club v. Peasley 653 

Ghafee v. Quidnick Co 735 

Chaffee v. Browne 187 

Ghaffees v. Risk ' 84 

Chalfant v. Williams. . 325 

Chamber of Commerce v. Wells. 715 

Chamberlain's Estate 513 

Chamberlain v. Blue 599 

0. City of Tampa. . 670 

V. Maynes 100 

V. MeClurg 344 

V. Thompson 270 

V. Trogden 444 

Chamberlaine w.'Chamberlaine . . 341 

Chamberlayne v. Temple 539 

Ghamberlin v. Chamberlin 205 

Chambers ». Ala. Iron Go 591 

- V. Bessent'. 482 

V. Bookman 487 

V. Gannon 764 

V. Chambers 373 

w. Crabbe 433 

V. Davis 138 

V. Goldwin 262 

«. St. Louis 226 

Chambersburg Sav. Fund's App. 

236 

Champion v. Brown 592 

Ghamplin V. Ghamplin 157, 206 

V. Laytin 17, 322 

Chance v. Beall 599 

Chancey's'Case 822, 823 

Ghandelor v. Lopus 337, 352 

Chandler v. Chandler 605 

V. Moulton 243 

V. Pomeroy 323, 597 

V. VonRoeder 420 

Chanfran v, Alexander 129 

Ghanslor Go. «. U. S 688 

Chapin v. Cooke 383 

V. Dake 378 

V. Pease 428 



TABLE OF CASES. 



[The references are to the pages.] 



Chapin v. Universalist Society . . 103 

Chapman, In re 238, 666 

Chapman v. B. & T. Pub. Co. . . 65 
V. Chapman. 483, 574, 578 

». HiU 6b7 

V. Let 843 

V. Osceola District. ... 59 

P.Wilbur'. 121 

Chappedelaine v. Dechenaux. . . 764 

Chappie V. Mahon . . . -. 262 

Charles v. Charles ; . . 746 

Charles v. Coker 182 

Charles E. Wiswall (The) 72 

Charleston Co. v. O'Rourke. . . . 692 
Gas Co. V. Kanawha 

Gas Co ,. 387 

Charlestown Ry. Co. v. Hughes. . 74 

Chariesworth v. Holt. ._ 205 

Charman v. Charman 861 

Charter v. Trevelyan 344 

Chartier v. Marshall. . . .'. 615 

Chase's Appeal 489 

Chase's Case 775 

Chase v. Allen 309 

W.Barrett 303 

P.Chase 136, 143 

V. Curtis . ..." 810 

V. Gardner 117 

V. Gray 398 

V. Lockerman 564 

V. Pahner 198 

». Peck 579 

V. Petroleum Bank 290 

P.Woodbury 539 

Chastain ». Hames 574, 576 

«. Smith ....148, 159 

Chater p. Carter 163 

Chattanooga Termi. Ry. Co. p.^ 

Felton "638 

Chaudron v. Magee 471 

Chauncy v. Leominster 614 

Cheesebrough p. Millard. . .539, 650, 
553, 575 

Cheever p. Wilson 190 

Chehak p. Battles 598 

Chelton v. Green 255 

' Chemical Co. v. Walton 258 

Cheney p. Bilby 314 



Cherry p. Stein 702 

Chertsey Market, In re 672 

Chesapeake and Ohio R. R. Co. 

V. Walker 482 

Cheshire p. Payne 433, 435 

Chesson v. Chesson 764 

Chester Co.' Trust Co. v. Pugh.^ 429 

Chesterfield p. Janssen. .39, 347"^ 370, 

373, 374, 375, 392 

Chesterman v. Gardner. . 463 

Cheswell v. Chapman. 771 

Chew p. Church 739 ' 

V. Nicklin 513 

Chewning v. Singleton ......... 306 

Chicago V. Bellingham 692 

p. Cameron 750 

Chicago & A. Ry. Co. v. N. Y., L. 

E. & W. R. Co. 636, 730 

p. Belliworth 395 

B. & Q. R. Co. p. Quincy 736 
B. & Q. R. R. Co. V. Pro- 
volt 228 

Coal Co. p. People. . ... 387 

Edison Co. p. Fay 597 

etc., Cent. Ry. p. Tit- 

terington 357 

Gas. Light Co. v. People's 

Gas Light Co 387 

Gen. Ry. Co. v. Chicago, 
Burl. & Quincy R. R. 

Co '. 707 

Hansom Cab Co. p. 

Yerkes 409 

M. & St. P. Ry. Co. P7 
Wab., St. L. & Pac. 

Ry., 387 

M. & St. P. Ry. Co. p. 
Pullman Palace Car 

Co 652 

M: & St. P. p. Third 

Nat. Bank 58 

R. R. Co. p. Dpekery. . 308 

p. U. S. Trust Co. 562 

R. Co. p. Nichols. .288, 299 
R. R. Co. V. Winslow. ^ 103 
Ry. Co. p. Des Moines 

Ry. Co ,.118, 120 

Ry. Co. p. Moore 660 



lii 



TABLE OF CASES. 
[The references are to the pages.] 



Chicago Ry. Co. v. VoUman 668 

Union Bank v. Kansas 

City Bank 868 

Chichester v. Bickerstaff 526 

Chick V. Willetts 254 

Chickering v. Chickering. 723 

Chioora Fert. Co. v. Dunan 348 

Chicot Lumber Co. v. Dardell . . 57 

Child », Douglas 638 

V. Mann 661 

ChUders v. Neely 789 

W.York 860 

Children's Hospital (Appeal of) 228- 

Childsw. Hurd 268 

w. Waite '. . 235 

Chiles V. Gallagher. ...... .243, 859 

Chilners v. Race 124 

Chilton V. Lyons 573 

Chipman v. Morrill 533 

Chippendale, Ex parte 578 _ 

Chiswell V. Morris 777, 778 

Choctaw R. R. v. Drew 703, 

Cholmondeley v. Clinton . . . 257, 444 
V. Union Light 

Co 606^ 

Chopin Co. v. Hendler 723 

Chorpenning's Appeal 174, 243 

Chouteau v. Boughton 287 

Chrisman v. Hough 171 

Christ V. Diffenbach 441 

Christ's Hospital v. Grainger . . . 232 

Christian Ass'n. v. Phila 669 

Church V. Carpenter. . 735 

Christie v. Dav^y 704 

Christler v. Meddis 515 

Christmas v. Griswold- 290 

. , V. Russell , .. 290 

Christopher St. Ry. Co. v. 

Twenty-third St. Ry. Co: . 326, 744 

Christy, Ex parte. . . .' 666 

Christy v. Barnhart 621 

Chupp V. Upton 416 

Church Bldg. Soc. v. Free Church 298 

Church t). Church 226, 455 

B.Cole 263 

V. Hinton 216, 217 

!;.,Ruland. . .3, 62, 168, 176, 

341, 368, 456 



Church V. SterUng 159 

«>. Swetland...357, 442, 

844, 850. 

V. Winton 444 

Chureher v. Guernsey 460 

Churchill v. ChurchiU 503 

W.Scott 395 

Chute V. Chemical Co 72 

V. Quincy 71, 607 

Cicero Lumber Co. ti. "Town of 

Cicero ,. . . 706 

Cincinnati v. Home 599 

Citizens' Bank v. Burrus 493 

0. First Nat. 

Bank.. .291, n356 
V. McKenna. . . . 125 
Citizens' Loan Co. v. Boston R. 

R. Co...... 288 

City V. Coal Co 699 

». Hursh 491 

V. Lacey 653 

V. People's Gas Co 639 

». Ry. Co 538 

V. Union Light Co 606 

.V. Water Works 653 

City Bank v. Bangs 664 

V. Luckie 570 

City Council v. Page 460, 471 

V. Reynolds 704 

V. Semle 689 

V. Simmerman .... 668 
City of Albert Lea v. Nielsen. . . 655, 
656, 659 
Broken Bow v. Broken 

Bow Water Works. . . 318 
Chicago V. Chicago City 

Ry. Co. 64, 658 

V. Collins 657 

V. Stock Yards 
Co..... 72, 706 
Cleveland v. Cleveland , 

Ry. Co. 658 

Columbus V. Jaques-. . . . 707 
V. Mercantile Trust Co. 75 

Denver-u. Beede 653 

Findlay v. Pertz 409 

Fort Worth v. Natural 
Park Bank 117 



TABLE OF CASES. 
[The references are to the pages.} 



liii 



City of Georgetown v. Alexan- 
dria Canal Co 690, 691 

Hartford v. Cfaipman ... 63 
Jamestown v. Pa. Gas Co. 80 

Keokuk v. Love 534 

Laporte v. Nortbiem 

Trust Co 471 

Lincoln v. Morrison .... 160 

Maimi v. Romfh 671 

New Castle v. Baney. . . 696 
Newport v. Masonic 

Temple Assn 213 

Phila. (Appeals of) . . . , . 288 

Phila. V. Davis 500, 503 

505 
V. Girard's Heirs... 223, 

231, 232 

St. Louis V. Knapp 690 

Trinidad v. Milwaukee & 
Trinidad Sm. & Ref. 

Co '..,. 459 

V. Mitchell 287 

Civil Service Supply Ass'n v. 

Dean 718 

Cladv. Paist 78 

Clagett V. Kilbourne 791 

V. Salmon 650 

Clair School Board's Appeal. . . . 669 

Clancarty v. Clancarty 142 

Clapp V. Leatherbee 431 

V. Rice 534 

V. Tower 515 

Clark's Appeal 60, 727 

Clark V. AUen 64 

-». Bank 291 

V. Cagle 590 

I/. Cantwell 169 

./.Clark. 151, 205, 247, 248, 
. . 405, 725, 860 

«. Condit .^ 260 

V. Douglass 418 

V. Everhard 365 

V. Fosdick, . . , 206 

V. Freeman. 720 

V. Garfield 240 

V. Gordon 590 

fi. Harper 420, 425 

V. Henry 62, 360 I 



Clark ». Hershy 321 

». Hutzler 608 

t). Jones 267 

w.Lyon 263 

V. Maguire 182 

V. Martin 641 

V. Mickell 304 

V. Miller 1^7 

V. Muran 289 

V. Needham 386, 387 

V. Parsons 485 

V. Partridge 441 

V. Patterson 167 

V. Reyburn. 266 

-V. Robinson 62, 342 

, V. Roller 767 

V. Rosario 604 

V. Sewell 822 

V. Sigua Iron Co 290 

V. Sisson 486 

V. Spanley 160 

V. Telegraph Co 611 

V. Truitt 611, 786 

Clarke et al. (Appeal of) 762 

Clarke v. Birley : 552 

V. Clayton 769 

V. Deveaux 408 

) V. Dickson 353 

W.Drake 314 

V. Dutcher 323 

D.Franklin 518, 522 

V. Hart 67 

V. Henshaw 564 

». Lott .' 124 

V. Price 733 

V. Royle 575 

^. White., 366 

Clarksdale v. Broaddus 670 

Clarkson w. Morgan 471 

Claude v. Handy 770 

Claussen v. La Franz 159 

Clavering v. Clavering 126 

Clay V. Hart 498, 506 

V. iiayton 127 . 

V. Thomas 175 

Claydon v. Green. . 629 

Clayton v. Bussey 320 . 

V. Carey 69 



liv 



TABLE OF CASES. 
[The references are to the pages.] 



Clayton ». HaUett 211, 214, 235 

V. Illingworth 590 

Claytor v. Pierson 132 

Cleaver v. Taylor 628 

Clegg V. Hands 451 

W.Rowland 681 

Cleghom », Zumwalt 326 

Clem V. Meserole 860 

Clement v. Cheesman 132 

W.Hyde 214 

Clements v. Moore 418, 421 

«. R. R. Co 309 

w.WeUes 731, 732 

Clementson v. Gandy 505 

Clemmons v. Cox 75 

Clemson v. Davidson.. 289 

Clendening ». Ohl 428 

». Wyatt. . . . . . .278, 375 

Clery's Appeal 565 

Clester v. Clester .'. ; . 156 

Cleveland ». Burrill 593 

V. Citizens' Gas Light 

Co 698, 705 

Cleveland Iron Co v. Kenney ... 64 

Clevenstine's Appeal 182 

aick V. Click 160 

Clifford V. Stewart 139 

Clift V. Moses 513 

Clifton V. Cockburn 322 

V. Davis 396 

Climer v. Hovey '. 617 

Clinan v. Cooke ." 621, 746 

Clinchfield Co. v. Powers 607 

Cline V. Strong, etal 609 

Clingman v. Hill 169 

V. Hopkie 304 

Clinkenbeard v. Weatherman. . . 365 

Clinton v. Myers 71 

Clinton Hill Limiber Co. v. 

Strieby 265- 

Clinton School District's Ap- 
peal ". 669 

Clisbee ». R. R. Co 387 

Clisby V. Clisby 203 

Clive ti. Carow 187, 249 

Ciodfelter v. Cox. 295 

Cloudas's Ex'r v. Adams 819 

Clough V. Cook 692 



Close V. Gravel Co 288 

Clouse's Appeal 613" 

Clowes V. Dickenson 539, 554 

Gluney v. Lee Wai 704, 705 

Clyde V. Simpson 475 

Coal V. Fairchild 863 

Coal & Iron Co. v. Gillespie .... 606 

V. Long 610 

Coal Co. ». Hurney 667 

». Sewell 792 

W.Lester. : ^.79, 288 

Coal Creek Co. v. Tennessee"Coal 

Co ■ 309 

Coal, etc., Co. v. Howard '. 637 ' 

Coates V. First Nat. Bank of 

Emporia 291 

V. Gerlach 204, 427 

Coats P.Merrick Thread Co. 720, 724 

Cobb's Appeal 188 

Cobb V. Illinois & St. L. R. Co. . 737 

Cobbethom v. William. 14 

Cobia ti. EUis 685 

Coble V. Nonemaker 450 

Coburn v. Raymond 751 

Cochran v. Cochran 428 

V. Craig 493 

V. McCleary 61 

». O'Hem 108, 188 

V. People's Ry. Co 309 

Cochrane v. O'Brien 662 

Cockall ti. Bacon 672 

CockreU v. Cockrell 75 

Cockrill V. Armstrong 138 

Cockrum v. West 547 

Cocks V. Chandler 718 

V. Izard 354 

Coco-Cola Co. V. Koke Co 720 

Codd V. Codd 871 

Coddington ». Pensacola & Geor- 
gia R. Co ^ .443 

Coder v. Huling 159 

Codrington v. Lindsay "! 498 

Codman v. Brigham .- 231 

Coe t). L. & N. R-Co 636 

V. Winnipiseogee Co 699 

Coffee V. Ruflfin 371 

Coffey V. Sullivan. 373 

Coffman v. C««tner 722 



TABLE OF CASES. 
[The references are to the pages.] 



Iv 



Coffman v. Liggett 69 

*. Lookout Bank 397 

Cogano. Duffield 107 

V. Stephens 520 

Coggeshall v. Pelton 217, 219 

Coggs V. Bernard 582 

Coggshall V. Bank 572 

CoggsweU 0. Griffith 762 

Cohen v. Berlin and Jones Env. 

Co 387 

V. Mainthow 727 

Cohen, In re.... : 437, 438 

Cohn V. Chapman 149 

V. Plass 258 

Coker v. Simpson 686 

Colburn v. Simms 709' 

Colby V. Kenniston 470 

Colclough V. Bjoyse 858 

Cole V. Brown 420 

V. Cole Realty Co ; 594 

V. Cunningham 80, 646 

V. Fickett 168, 323 

». Gibson 380 

V. Hinck 311 

t). Littlefield ;... 136 

w. Mette 60 

V. O'Neill.; 434 

V. Seamonds 732 

W.Stokes 408 

». Van Riper 189 

D. Wade ....;.. 143 

B. Wolfskill '. 410 

Cole SUver Min. Co. v. Virg. Co . 637' 

Coleman's Appeal; 625, 755 

■Estate. 404- 

Coleman v. Coleman 765 

V. Columbia Oil Co. . . 346 

w. Hagey.. 424, 807 

V. Jaggers - 861 

V. d'Leary 217 

V. O'Leary's Ex'r 227 

«. Wooley : 190 

Coles V. Morrow 379 

». Trecothick 408 

Coley V. Horkan 684 

Colgan V. Bank. .-. 274 

V. Oil Co 609 

Colgate V. Colgate 416 



Collaway v. Witherspoon 396 

CoUerd v. Tully 563 

Collett V. Harris 460 

Collier v. Alexander 860 

V. McBean 613 

V. Miller : . . 485 

V. Pfenning 483 

CoUingwood v. Row 515j 523 

Collin's Appeal. . .' ; . 283 

Collins V. Archer 454, 780 

V. Carlisle 136, 143 

' V. Case 413 

V. Castle 732 

V. Champ's Heirs 510 

V. Collins 206, 399, 436, 574 

V. Dickinson 767 

V. Green 74, 669 

V. Lackey 621 

V. Lewis '. 126 

». Locke 389 

V. London Gen. Omnibus 

^ Co 848 

W.Park 628 

Collins Co. V. Brown. 718 

Collis V. Robins 564 

CoUiton V. Oxborough 685 

Collyer v. Fallon 286 

Colman v. Eastern Counties Rail- 
way Co 737 

V. Sarrel 871 

Colonial Bank v. Cady. . . .. 478 

V. Hepworth.472, 478 

Colonization Co. v. Detfler 752 

Colorado Fuel.Co. v. Kidwell. . . 288 

Colser V. Hughes ; 169 

Colson V. Thompson 609 

Coltw. Ives 294 

w. O'Connor 608' 

Colton V. Colton 138 

V. Depew 67 

V. Ross 340 

Columbia Coll. v. Thacher 729 

Electr. Co. v. Dixon. .353 

Columbian Athletic Club v. State 692 

Bank's Estate. 162, 460, 

466, 692 

Columbine v. Chichester 595 

Colwell V. Woods 264 



Ivi 



TABLE OP CASES. 



[The references are to the pages.] 



Colyer v. Clay 606 

«. Finch .298, 454 

C!omer v. Lehman & Co 283 

Coming, Ex parte 577, 678 

COmm V. Richards 206 

Commerce Trust Co. v. Banks.. . 662 
Commercial Bank v. Armstrong. 162 

«. Bank 467 

U.Cabell 652 

^ V. Western 

Reserve Bank. 539 

Commercial Co. v. Fifer : . 862 

Commercial Mut. & Ins. Co. v. 

The Un. Mut. Ins. Co 597 

Commercial Nat. Bank v. Port- 
land 289 

Commissioners v. Long 690 

t). Pemsel 211 

V. Walker 235 

Commonwealth v. Addicks 832 

V. Bank. 737 

V. Bank of Pa...' 737 
V, Crompton. . . 293 
V. Kennedy. ... 703 
V. Martin . . 517, 519 
V. McAUister 160,239 
V. McGovern. . . 704 
». Moltz...479, 481, 
482 

w. R. Co 690 

«;. Reading Trac. 

' Co 443 

O.Richards 206 

D.Rogers 737 

D.Rush :. . 690 

«. Stauffer 383 

V. Stevens 701 

«. Trust Co 163 

Commonwealth Trust Co., In re . 545 
Commonwealth Trust Co. v. 

Seltzer 409 

Compton V. Greer 764 

^ Comstock V. Johnson 74 

V. Lopokowa 733 

V. McDonald 792 

V. Smith 480 

Conaway v. Sweeney 590 

Concord Bank v. Bellis 494 



Concord Bank v. Gregg. ..,..;. 367 
Concrete Co. v. Tract Co.. . ' . . . 289 

Conduit V. Erie R. R. Co 60 

Cone V. Cone 235 

Congregation v. WiUiams. .476, 479, 

482 
Congress and Empire Spring Co. 

V. High Rock Spring Co-. 718 

Conklin v. Conklin 771 

V. Wehrman 652 

Conley v. Alabama Gold Life 

Ins. Co 660 

V. Brewer 642 

D. D. R. . . : 235 

ConUn V. Cantrell 190 

V. Tut. Co 285 

Conn. Mut. Life Ins. Co. v. 

Tucker 662 

Conn. River Saving Bank v. Al- 

bee 124 

Connely v. Bank 660, 662 

V. Harrison 290 

Conner », Chase „ 747 

Connett ». United Hatters 694 

Connolly v: Branstler 495 

Connor v. Connor.. 266 

V. Groh 752 

V. Stanley 410 

Conolly, In re 135 

Conover v. The Mayor 648 

Conrad v. Foy 552 

V. Harrison 539 

Consequa v. Fanning 764 

Consohdated Co. v. Hinchman. . 572 

». Ry. Co 594 

Gonsol., etc., Co. v. O'NeiU 343 

Consol. Gas Co. v. New York. . . 655 
Consol. Water Power Co. v. 

Nash 600 

Const V. Harris 790 

Constable v. Bull 142 

Constant v. Matteson 244 

Consumers' Oil Co. v. Nunne- 

maker 386 

Continental Co. v. City Co. .... 556. 
Continental Fuel Co. v. Haden. . 314 
Continental Nat. Bank v. Nat. 
Bank of the Commonwealth. . 492 



TABLE OF CASES. 
[The references are to the pages.] 



Ivii 



Oontinental Nat. Bank v. Weems 162 
Gontoooook Precinct v. Hopkin- 

ton 546 

Converse v. McKee 795 

C!onville v. Shook 763 

C!onway's Ex'rs v. Alexander. . . 264 

Conway v. Cutting ? 288 

V. Garden City Paving 

Co .' 355 

Conwellw. Evill. . .'. 747 . 

Conyngham's Appeal 583 

Cooch V. Gerry 254 

Cook's Adm'rs w.-CoIe 751 

Cook & Gleason, In re 797 

Cook, Ex parte 795 

V. Bagnell Co 396 

V. Barr 117 

V. Bartholomew 255 

». Brightly. . .". 273 

V. Carpenter 810 

V. Colyer's Adm'r 429 

V. Cook 355, 368, 513 

». Finkler 255 

V. Flagg 369 

V. Gregson 257, 818 

». Kennerly 181 

». Listen 327, 744 

11. Manicus 471 

V. Martin 171 

V. Rosslyn 661 

Cooke V. Boynton 637 

0. Chilcottf 636, 732 

V. Dealey 519 

V. Husbands 189, 190 

V. Lamotte 129, 400 

V. Nathan.'. 357 

• & Cobb Co. ti. Miller.... 721 

Cookesu. Culbertson. . . . ' 269 

Cookson V. Cookson 514, 525 

V. Reay 514 

W.Toole 189, 190 

Cooleewahee Co. v. Sparks 863 

Cooley V. Brayton -. . 471 

!). Cooley. . . . . . 153, 156, 158 

IV. Houston'. . . .499, 501, 768 

CooUdge V. Knight 124 

Coombe v. Carter 281, 284 

Cqomba v. Burk " 387 



Coombs V. Tuller 700 

Coon V. Swan 848 

Cooney v. Lincoln 395 

V. Woodbum 196 

Coons V. Coons 152 

Coope 0. Twynam 535 

Cooper's festate 513 

Cooper V. Colsen 622 

V. Cooper 438, 505 

V. Davis 682 

V. Fanners' Ins. Co. . 326, 744 

V. Garden Tracts 285 

V. Hood , 786 

«;, Jewett 76, 542 

V. Lovering. ? 352 

!;. MacDonald. ....... . 184 

V. National Co 537 

«;. Phibbs 170, 321, 322 

». Potts ;.. 441 

». Reiily 286, 371 

D.Roland.. .594, 604 

Cooper Co. v. Irvin ,556 

Coopwood V. Bolton 763 

Coorg (Rajah of) v. East India 

Co 849 

Cboth V. Jackson 624 

Coover's Appeal 802 

Cope V. Hastings. 671 

w; Smith 552 

Copis V. Middleton.. . .542, 544, 555 

Coppage V. Barnett 150 

Coppedge v. Threadgill 198, 201 

Coppes V. Keystone Paint Co. . . 744 

Corbett v. Craven 327 ' 

w. Cronklute. . 602 

V. Poelnitz 186 

Corbin v. Baker 174 

Corbitt V. Cprbitt 767 

Corby v. Chicago, R. I. & P. Ry. 

Co 689 

Cordano v. Ferratti 622 

Cordingley v. Cheesebrough .... 625 

Corinth v. Locke 859 

Corliss V. Moinet 863 

Com v.. Greenberg 808 

Cornell v. Andrews 614 

w. Hall ^64 

». Lovett 382 



Iviii 



TABLE OF CASES. ^ 
[The references are to the pages.] , 



Cornell V. Maltby 464 

University w. Parkinson. 489 

Comett V. West 249 

Corn Exchange Ins. Co. v. Bab- 
cock 190 

Com Exchange Nat. Bk. v. The 

Solicitors' Trust Co 162, 596 

Comfoot V. Fowke 367 

Cornick v. Pearoe 5l4 

Coming v. Lowerre 690, 707 

«. Troy Iron Co 636 

Cornish V. Abington 492 

V. Bryan .7 751 

P.Clark 421 

V. Johns.- 357 

V.Wilson 819 

Cornwall & Lebanon R. Co.'s 

Appeal.. 612, 737 

Comwell V. Orton 104, 108 

V. Wulff 108 

Corporation of Latter Day 

Sajnts V. Watson 399 

Corr's Appeal 157 

Coirell v. Smith 670 

Corrigan v. Conway 405 

V. Pironi 399 

Corson v. Craig 297 

V. Mulvany 608, 609 

Cort V. Lassard 733 

Cory V. Cory 396 

V. Pullen 255 

Universalist Soc. v. Beatty . 216 

Corya v. Corya 239 

Coryton v. Helyar 96 

Cosgrove v. Chicago 59 

Costa V. Selva 146 

Costa Rica Ry. Co. v. Forwood . 412 

Costello V. Taske 613 

Cotesworth v. Stephens 568 

Cotheal v. Talmadge 308 

Cotterell v. Long 263 

Getting V. Elevator Co 537 

Cottingham v. Moore . 174 

Cotton V. Woods 158 

Cottrell's Appeal . . ; 544 

Cotts V. Quertermons 496 

Couch V. Sutton 495 

D.Terry 533 



Coughlin V. Seago ]|02 

Coulson V. Alpaugh 142 

Counterman v. Dublin. 485 

Countess of Momington v. Keane 284 

County V. Allen • 487 

V. Bank 161 

V. InsfCo 549 

Board v. Hensley 495 

Ct. W.Cottle 160 

of Morgan v. Allen 810 

Schuylkill!;. Copley.. 344 

Courtright v. Barnes '■■ 409 

Courtwright v. Bumes 64 

Coutts V. Acworth 503 

Cove V. Armstrong 590 

Coventry v. Coventry . : 565 

Covington u. Griffin's Admr. .. . 68 

Cowan's Appeal 404 

Cowan V. Curran 607 

v: Jones 65 

V. Plate Glass Co.. . . 559, 562 

V. Southern Ry. Co 689 

Cowdry v. Day 259 

Cowee V. Cornell •. 402 . 

Cowell V. Edwards. 533 

.Cowles u. Gale 629 

V. Raguet. . . . .' 378 

V. Whitman 596 

Cowley V. Cowley 723 

V. Hartstonge 514 

V. Wellesley 681 

CowUng W.Hill...* 495 

Cowls V. Cowls 829, 830 

Cowman v. Harrison 142 

Cowper V. Baker 687 

Cox V. Beard 327 

V. Brown 791 

V. Chapman 238 

V. Corkendall 566 

V. Fenwick 575 

V. First National Bank. . . . 279 

V. Hickman 785 

V. Hughes. , 339 

V. McMuUin 771 

V. Middleton 600 

V. Milner 460 

V. Rogers 505 

Coyne v. Supreme Conclave, . . . 369 



TABLE OF CASES. 
[The references are to the pages.] 



lix 



Coyne v. Warrior Southern Ry. . 689 

Cozine v. Graham 117 

Crabb v. Crabb 121 

V. Pratt 108 

». Watts 395 

Crabtree v. Bramble 525 

Craft V. Dickens 324 

V. Lathrop 659 

V. MoConoughy 389 

Crahan v. Chittenden 255 

Craig ». Ankeny 531 

0. LesUe 510, 516, 521 

w. Watt 182 

Craighead v. Swartz 530 

Crain v. Barnes 62 

Cramer ». Mooney 620 

V. Remmell 265 

Crampton v. Zabriskie 670 

Crandall v. Lincohi 735, 810 

Crane v. Holies 515 

V. Bunnell 648 

V. Bruntrager 661 

», Conklin 396 

V. Decamp 605 

V. Deming 272 

». Bead ; 158 

Crane Co. v. Dryer. . . . ; 796 

Cranford v. Tyrrell 692 

». Watters 760, 761 

Cranmer, Ex parte. . . .' 836 

Cranston v. Plmnb 856 

Cravens v. Cravens 498 

Craver v. Spencer 591, 624 

Crawford v. Jones 150 

». Maddux 355 

V. Nies". '. . 265 

». Rosa ^.. 863 

y. Taylor 255 

V. Whitmore 203 

«. Wicka ■. .. .387 

Crawley ». Howe 622 

.». Timberlake 576, 680 

Crawshay v. Maule 786, 788 

w.Thompson.T 366 

». Thornton. 660, 661,662 

Craythome ».- Swinebum 532 

Creath v. Sims 70 

Creecy v. Grief 600 



Creed v. Lancaster Bank , 153 . 

V. Scruggs 74 

Creeson v. MiUer .'. 458 

-Creigh v. Boggs 617 

Creight v. Forster 592 

Creighton v. Roe 71 

Crennell v. Fulton 760: 

Crerar v. Williams 231 

Cresap v. Man6r 574 

Crescent Mining Co. v. Silver 

King Min. Co 642 

Cresson's Appeal 217, 235 

Creuze v. Hunter 832 

Creveling's Ex'rs v. Jones 825 

Crewe v. Dicken 236 

Cribbins w. Markwood 371, 372 

Cridland's Estate 241 

Crim V. England 603 

V. Handley. 647 

». Thompson 859 

Crippen v. Chappel. ...'... .546, 549 

Crisler v. Whadley 496 

Critchfield v. Kline 326 

Crocker v. Crocker 507 

V. Manley 351 

Crockett v. Crockett 120 

V. Maguire 468 

Croesbeck v. Morgan 605 

Croft V. Adam 143 

V. Day 718, 722 

V. Graham 376 

Croker v. Scott 669 

Crompton v. Vasser 124 

Cromwell v. Amer. L. & T. Co. . 662 

Crone v. Q:one 159 

Cronian v. Bank 132 

Cronih v. Bloemecke. 690 

Crooker v. Crooker 795 

Cropper i>. Davis 385 

Crosby v. Huston 468 

V. Hutchinson 860 

Cross V. De Valle 856, 857 

V. Her ' 754 

^ t». London Anti- Vivisection 

Society „. 213 

Crossley v. Elwprthy 421 

V. Lightowler 698 

Crossling v. Crossling 144 



Ix 



TABLE OF CASES, 



[The references are to the pages.] 



Grossman v. Gibney 788 

V, Penrose Ferry 

Bridge Co 367 

Crothers v. Crothers 404 

Croton Turnpike v. Ryder 701 

Crow V. Clay County 214 

V. Robinson 293 

CrowdeT v. Tinkler. 705 

Crowley v. Crowley 150 

V. Hicks 516 

Crown Coal & TowvCo. v. Thomas 761 

Croxall V. Shererd. 95, 103, 108 

Croyle v. Moses 348 

Cri^ess I). Fessler 352 

Crumb, Ex parte 829 

Crumlish v. Security Trust Co. . . 128 

Crump V. Lambert 698, 703, 704 

V. Reid's Adm'r 136 

Crumrine v. Crumrine 156 

Cruse V. Barley 521 

V. Paine 637 

Cruttwell V. Lye 386 

Cruwys v. Colman. . .138, 141, 142 

Cuba Colony Co. v. Kirby 414 

Cubberly ». Cubberly , . 169, 742 

Cudd V. Cowley 649, 654 

Cuddee (Cud) v. Rutter. .595, 596, 
600, 604 

Cuddy V. Sturtevant 377 

Culbertson's Appeal 98 

CuUen V. Minn. Loan & Trust 

Co 258, 259 

Culley V. Jones 350 

Cullom V. O'Brien 653 

Cullyer v. Knyvett 14 

Culp V. Price 150, 158 

dulver V. Bank 235 

Cumbee v. Ritter i . . 684 

Cumberland v. Codring'ton.538, 566 
Cumberland Co. v. Sherman. . . . 322 
Cumberland Glass Mfg. Co. v. 

Glass Bottle Blowers' Ass'n. 

693 
Cumberland Nat. Bank v. Baker 283 
Cumberland Telephone Co. v. 

Louisville 671 

Cumberland Union Bk. Co. v. 

MaryportHematiteL&S. Co. 282 



Cumberland V. R. R. Co. v. 
Gettysburg & Harrisburg Ry. 

Co 612 

Xlumming v. Williamson 189 

Cummings's Appeal 371, 500 

Cummings Co. v. Deers. ....... 707 

Cummings v. Arnold 623 

«. Coe .'. 741' 

I V. Nielson 603 

V. Union Blue Stone 

Co 387 

Cummins v. Balgin. 745 

Cunnack v. Edwards 213 

Cunningham v. Cunningham . . . 624 

V. Davenport.'. ... 119 

V. Jones 407 

V. Macon and 
Brunswick R. 

R 545 

Cupit V. Jackson 863 

Curd V. Field 136, 139, 475 

V. Wunder 650 

,Cureton v. Gilmore 627 

Curlett V. Newman ' 399 

Curling i;. May, ,.' 512 

Curran v. Banks. .............. 172 

V. Green 234 

Curriden v. Middleton 341 

Currie's Case 415 

Currie v. Clark 57 

V. Goold 323 

Curry v. Pile 825 

V. Timber Co 700 

Curtenius v. Hoyt 737 

Curtia V. Salmon River Co 480 

Curtir v. Engel 183 

Curtis ti. Albee 324 

V. Auber 281 

V. Crossley . . .\ 337 

V. Curtis ,...775, 779 

V. Golf Assn 690 

V. Lakin 113 

V. Mundy 430 

«. Olds 343' 

V. Simpson 198 

V. Stilson 350 

V. Van Bergh 308 

V. Walpole Co 569 



TABLE OF CASES. 
[The references are to the pages.] 



Ixi 



Curtis Co. V. Federal Trade 

Comm ' 392 

Cushing V. Danforth 170 

Ciishman v. Church 672 

V. Goodwin 160 

V. Thayer Mfg. Co.. . . 597 

Cusimans v. Olive Oil Co 725 

Custar V. Titusville Gas and 

Water Co 367 

Custer V. Hall 861 

Cuthbert v. Wolfe 182 

Cutler V. Babcock 369 

». Partridge 379 

V. Roanoke R. R., etc., 

Co 344, 351 

W.Smith 441v 

Cutting V. Dana 612 

.W.Gilbert. 657 

Cutts V. Perkins 278, 289 

Cuyler v. Ferrill 767 

Cycle Co. v. Waggener. 555 



Dadirrian v. Yacubian 720 

Dahlman v. Gaugente 396' 

Dail Co. V. Willys 692 

'' V. Willys-pyerland 592 

Dailey v. Superior Court 714 

Daily v. Litchfield 599 

Dakin v. Rumsey 323 

V. Union Pacific R. Co. . . 754 

DaJamere v. Barnard 89 

balby V. Maxfield 599, 622 

Dale, Ex parte : 160 

Dalew. Cooke 526 

V. Hamilton 117 

Dallas V. Heard 190 

Dalton Co. v. Virginia 668 

Dalton, etc., R. Co. v. McDonald 737 
Daly W.Daly 138 

V. Kohn ' 421 

Dalzell V. Crawford 590, 613 

V. Dueber Watch Co. . . . 607 

V. Lewis 344, 345 

Damon v. Hyde 234 

Dana v. Newhall 455 

Dance Mining Co. v. Frost 170 



Dani61 v. Adatas 607 

V. Ferguson. . .■ 639 

V. Leitch. 778 

V. Mason 494 

V. Mitchefl ,^365 

Daniels v. Benedict 205 ■ 

V. Davison 462, 592 

Dankel v. Hunter 608 

Danner v. Brewer 130 

Dante v. Dante 644 

Danyell v. Belyngburgh 14 

Danzeisen's Appeal . . , 263 

Darby v. Darby > 792 

D'Arcy v. Blake .108, 779 

Darcy v. Kelley .225, 227 

Dargan v. Waring 805 

Darke v. Smith 603 , 

Darling v. Cummings 605 

Darling, In re, Farquhar v. Dar- / 

ling 213 

Darlington's Appeal 410 

Darlington's Estate. ,238, 409 

Darlington v. Darlington 513 

iJamall w. Hill 776 

Darnell v. Rowland 396 

Daririey v. Lond., Chat. & Dov. 

R. Co...*. 617 

Darr v. Thomas ". 566 

Dashiell v. Att.-Gen 225 

Dashwood V, Magniac 680 

Datz V. Phillips : 606 

Daughaday v.. Paine.'. 574 

Dauler v. Hartley 378, 379 

Davenport v. Latimer 591 

V. Fenna. R. R 848 

Davenport Bridge Ry. Co. v. 

Johnson 689 

David V. Moore 365 

Davidson, Irtre.. .' 227 

Davidson v. Barclay . 485 

w. Bright. . .' 510, 513 

V. Burke 809 

V. Kemper. Ill 

V. Little 371 

«. Real Estate Co 173 

V. Young 494 

T)avies v. Ashf ord 524 

V. Davies -384 



Lxii 



TABLE OF CASES. 
[The references are to the pages.] 



Davies v. Jenkins 179 

V. Porter 378 

Davis's Appeal 240, 518 

Davis, In re 242 

Davis V. Bank of Englafid 451 

w. Barr 297 

V. Bigler 431 

V. Cain 182 

V. Cheurront 531 

». Clay 263 

V. Cummings 394 

V. Davis 156, 303, 355, 

686, 767, 776 

V. Downer 146 

w. Ely 617 

V. Foreman 734 

V. Frankenlust 685 

t). Funk 582 

V. Harman 246 

V. Harrison 103 

V. Hartwig 643 

V. Headley 593 

V. Henry 333 

V. Hoopes. 644 

v. Howell .796, 798 

V. Judson 620 

V. Keen 355 

V. Kendall 718 

V. Kerr 369 

V. Kneale 491 

». Kuck 132 

V. Lane. . . ." 789 

V. Las Ovas Co 413 

V. Martin 76 

V. Michener. 672 

V. Newton 198 

D.Page 607 

V. Parker 593 

t). Parsons./. 399 

«. Petty ...602, 605 

V. Petway 354 

V. Pursel 463 

V. Reed 687 

V. Republic Trust Co 583 

V. Rodman 410 

V. Sawyer 704 

V. Schwartz 418 

-V.Sloan 860 



Davis V. Smith 285, 397, 574 

V. Strange ■'■ ■ 399 

V. ToUemache. 594 

«. UphiU 438 

V. Vass 544 

«. Wakelee 483, 645 

V. Ward 458 

V. WetheriU 256 

V. Whitehead 176 

Davis, etc., Co. v. Los Angeles 

64, 653 

Davison's Appeal 494 

Davison v. Davis 605, 627 

V. Gregory 542 

Davoue v7 Fanning 173 

Daw V. Terrell ^. 577 

Dawes v. Scott 565 

Dawson v. Dawson. . . . 121, 123, 127 

V. Kentucky Co 668 

V. Massey 403 

V. Newsome 597 

B.'Sims -809 

». Tremaine 680 

P.Williams 783 

Day V. Amburgey 148, 149 

V. Cohn 450 

V. Davis - 260 

V. Fort Scott Invest. Co. . . 356 

V. Hale 576 

V. Hurchman 648 

w.Luhke...; :. 629 

t). Roby 622 

». Roth 120, 159, 161 

W.Stewart 601 

Day L. & C. Co. v. The State. . . 750 
Dayton v. Multnomah County. . 669 

K. Stewart 128 

Dayton HydrauUc Co. v. Felsen- 

thall 868 

Deaconess's Hospital v. Bontjes 704 

DeaJey v. Land Co 354 

Dean, Inre.. . 209, 230 

Dean v. Chandler 287 

V. Charlton 74 

». Dean 115, llS 

V. Fuller 396 

w-Ross 344, 365 

V. Smith 869 



TABLE OF CASES. 



Ixiii 



[The references are to the pages, h 



Dean «. St. Paul & Duluth R. R. 

Co 287 

V. Trust Co 235 

Dear, Ex parte 797 

Dearborn v. Taylor 542 

Deare v. Soutten 203 

Dearin v. Fitzpatrick 198 

Dearlie v. Hall 294 

Deatly v. Murphy 394, 429 

Deaver v. Cooper , 154 

De Bariante », Gott 204. 

De Bardeleben v. Bessemer Land 

Co \... 170, 409 

De Beauvoir v. De Beauvoir 

513, 521 
De Beers Mines v. So. Africa 

Co 262 

De Bevoise w." H. & W. Co 761 

Debenture Co. v. Hopkins 491 

Debinson v. Emmons 132 

Debs, Inre 691, 734 

Decamp v. Dobbins 212 

De Carriere v. De Calonne. . 869, 870 

Dech's Appeal 590 

Deck V. Tabler 156 

Decker v. Diemer 348 

V. Eisenliauer 296, 299 

B.Howell 803 

V. Stansberry 429 

Dederer v. Voorhies 861 

Dedge v. Bennett ; 256 

Dedman v. Chiles 659 

Deeley v. Dwight 283, 580 

Deering «.,Boyle 190 

Deese v. Deese 157 

De Everett v. Henry 171 

Deford v. Mercer •. 325 

De Gray v. Monmouth Beach 

Club House Co....'.'.. 728 

Dehon v. Foster 80, 643, 666 

De Houghton w. Money 285 

Deibert's Appeal 199 

Deidrich v. Simmons. ., 781 

De Jarnette v. De Jarnette 239 

Deke v. Hunkemeier 436 

Delafield v. Barlow 514 

Delamater's Estate 124 

De Lancey v. The Queen. . . — 516 



Delaney v. O'Donnell 860 

Del. and Md. R. Co. v. Stump. . . 707 
Del., Lack. & _W. R. R. v. Breck- 

enridge 686 

Del. Lack. & W. R. R. w.'Cent. 

Stock Yard Co .637 

Delaware and Raritan Canal v. 
Raritan and Delaware Bay R. 

Co 737 

Deibert's Appeal. ., 99 

De Lisle v . Priestman ........... 580 

Dellinger's Appeal 119 

Delmas v. Insurance Co 604 

DeLongt). Marshall. .571, 572, 576 
Del Monte Co. v. Chaffee Co. . . 689 

De Loughrey v. Hinds 669 

Delta Land Co. u. Benton. . 120, 123 
De Manneville v. Crompton. . . . 433 
V. De Manne- 
ville 832 

Demarest v. Hardham 704 

c.Wynkoop 255, 456, 748 

De Mestre v. West 435 

Demeter v. Wilcox 76 

Demmy's Appeal . : 589 

Dempsey v. Bush 551 

Dempster v. Baxmyer 72 

Den ex dem. Obert v. Bordine. . . 98 

Den w. Hay 120 

Denechaud v. Berry. 189 

Dengler v. Fowler 591 

Deniston v. Deniston 99 

«. Hoag^nd. . : . 620 

Dennard «. Bank 869 

Dennis v. Dehnis: 617 

V. Echardt 704 

V. Jones 443 

V. Long 752 

V. North. Pac. Ry. Co.. . 325 

Dennison v. Groehring 131, 331 

V. Keasby 595 

Denny v. Fronheiser 646 

V. McCown 58 

Densmore v, Densmore 414 

- Dent V. Ferguson 429 

V. Matthews ....'. 274 

». Turpm. . ." 718 

Denton v. Denton 870 



bdv 



TABLE OF CASES. 
[The references are to the pages.' 



Denton v. Jackson 658 

«. LeddeU... 700 

V. MacNeil 444 

V. Nanny 256 

V. Ontario County Nat. 

Bank :.. 266 

u. -Stewart 626, 753, 754 

Denver & N. O. Ry. Ck). v. A., T. 

&S. F. R. Co 636 

De Pauw v. Oxley 685 

De Peyster v. Gould 153 

Deposit Bank v. Rose 240 

DeProft V. Heydecker 493 

De Queen v. Penton 653 

Derby v. Derby ' '225 

Derby Turnpike Co. v. Parks. . . 336 

De Reimer v. Cantillon 324 

Deringa. Earl'Df Winchelsea. . . 531, 
632, 534, 535, 537, 542, 544, 546 

Derr's Estate 443 

Derry w. Peek 347, 349, 361, 363 

De Ruvigne's Case 415 

De Saulles, Matter of. ...... .i. 829 

Desborough v. Harris 662 

Descarlett v. Dennett 312 

Desert Nat. Bank v. £)inwoodey 316 

Desilver's Estate. 393 

Des Moines Life Ins. Co. v. Sei-, 

fert '61 

Detroit B. B. C. v. Deppert 702 

^ Trust Co. V. Hunrath., . 657 

Dettra v. Kestner 343 

Deuber .Watch C4se Man. Co. v. 

Howard Co ; . . . 386 

Deuter v. D«uter 156 

De Vaughn v. Hays 110 

Devausney, In re :....,. 839 

Dp Veney v. Gallagher 684, 782 

Devenish v. Baines 341 

Devey v. Thornton 864, 865 

Devlin v. Moore 364 

De Visme, litre 156 

De Vitto V. Harvey 502 

De Voe Co. v. Wolff. 725 

Dewar v. Maitland 500 

Dewey v. Lindhout 238 

V. Whitney 326 

Dewhurst, Ex pqne 570, 795 



Dewit V. Ackerman 767 

Dewitt V. Yates 825 

De Witt Wire Cloth Co. v. N. J., 

etc., Co 387 

Dewy w. Field 479 

Dexter w. Arnold 764 

V. Evans - 137 

V. Harvard College. . 215, 216 

V. MacDonald 68 

Dey V. Dunham 470 

V. Martin 648 

V. Williams 822 

Deyo V. Hudson. . . ." 366 

D'Eyncourt v. Gregory 771 

Dezell V. Odell 482 

Dezendorf v. Humphreys 190 

Dial's Ex'rs v. Rogers 763 

Diamond v. Lawrence County. . 741 

Diamond M. Co. ». Roeber. .389, 731 

V. Saginaw M. 

Co.:. ,.723, 724 

Diamond State Iron Co. v. Todd . 600 

Dick V. Andsley 227 

V. Doughton 779 

w.Pitchford 110 

Dicken v. Simpson 265 

Dickenson v. Farley , / . . . 443 

V. Grand Junction 
Canal Co.... \.. 729 

Dickerson's Appeal 125 

Dickerson v. The Commissioners 649 

w. StoU 782 

Dickey's Appeal 172 

Dickey v. Thompson 539 

Dickinson v. Codwise 160, 171 

Dickinson v. Dickinson 794 

V. Overton.... ..824, 825 

V. Stevenson 342 

Dickson v. Dickson 498 

V. Kempinsky 395 

V. Montgomery 210, 226 

V. N. Y. Biscuit Co 507 

B.Stewart 368, 609 

Diebel v. Diebel 318 

Dieke v. Dieke 281 

Dierks v. Comrs. of Highways . . 700 

Digg V. Brown 792 

Diggs V. Wolcott 667 



TABLE OF CASES. 
[The references are to the pages.] 



Ixv 



ill. Boys. 471 

Dike V. Green 610 

Dikeman v. S. Creek Coal Co. 

' 627, 628 

Dill V. Doebler .' 308 

w. Sl)ahan 318 

V. Wisner 249 

Dillard v. Jones 441 

Diller v. Brubaker 408, 582 

Dillinger's Appeal 206 

Dillman v. Nadelhoffer 351, 809 

Dillon V. Coppin 131 

Dills V. Doebler. . 308 

DUworth's Appeal 705 

Dilworth v. Bradner 362 

Diman'w. Providence R. Co. 326^ 328, 
441, 443 

DimickV. Shaw 688 

Dimmock v. Hallett ' 354 

Dimond v. MacFarlane 621 

Dingley ». Bon .' 614 

Dinsraore v. Neresheimer. . .80, 644 

Dinwiddie v. Bailey 762 

VtSelf 325 

Diplock V. Hammond 290 

Director Gen. zj.Exp 738 

Directors of Venezuela Central 

R. Co. !). Kisch 353 

Disbrow v. Jones 463 

Dismal Swanjp Land Co. v. Ma^ 

cauley 57 

Distilled Spirits Case, The 00 

Distillery, & Cattle Feeding Co. 

a. The People. . 389 

Dist. Twp. of Grove v. Myles. . . 61 

Dixon V. Green^ Co 670 

I V. Holden 714 

V. Muckleston. .....'.... 578 

w. Saville.,, 108 

Dixon Crucible Co. v. Guggen- 
heim _. 718, 720- 

Dize V. Beacham 553 

Doan V. Vestry .85, 234 

Doane v. .Dunham 154 

V. Lake St. R. R. Co.701, 707 

V. Russell.^ 580 

Dobbin v. Cordiner 494 

Dobbins v. Los Angeles 64 



Dobschultz V. McAIevey 498 

Dock Co. V. FUnn O'Rourke 639 

Dock V. Dock 696, 716, 846 

Dod U.Paul '. . 326 

Dodd V. Flavell 642 

~ W.Hartford 669 

V. Levy 805 

>«. Seymour 609" 

Dodge «: Davis 463 

V. Griswold 805 

V. Knowles 187 

V. Osbom 669 

V. Pope 482 

V. Strong 647 

V. Van Buren Circuit 

Judge 670 

«. WOolsey :f.. . 737 

Co. V. Construction In- 
formation Co.. . . 715 
Stationery Co. v. Dodge . . 723 

Dodson V. Ball 99, 103, 180 

Dodsworth v. Dodsworth 312 

Doew. Cafe ,-121 

dem. Cooper v. Finch 95 

«. Doe.... .'. 859 

V. Dowdall 478 

P.James.' 431, 448 

V. Lewis ; 433 

dem. Lloyd v. Passingham. . 95 

Doebler's Appeal 615 

Doggett V. Feitig ....:.. 345 

V. Hart. . .' 782 

Doherty v. Allman .680, 731. 

Dohnert's Appeal 662 

Doige V. Bruce 688 

Dolan V. McDermott 227 

t). Smith 782 

Dole u. Gear.. ~. . . . 203 

Dollar Bank v: Duff 453 

Dollar Savings Bank v. Bennett. '148 
Dollar "Savings Fund v. Union 

Trust Co 154 

Dolliver v. DolUver 397 

Doloret v. Rothschild 595 

Dolphin V. Aylward 429 

Domestic Tel. & Teleph. Co. v. 

Metropolitan Co 598 

Dominiok v. Michael 513 



Ixvi 



TABLE OF CASES. 
[The references are to the pages.] 



Dominisag v. Mancilla. ^ 466 

Donahoe v. Conrahy 119 

Donald 9. Suckling ; . . 583 

Donaldson v. Beckett 711 

V. Donaldson 293 

». GiUot 344 

a.jThoinason. ^ 468 

Donation Trustees v. Streeter. . . 258 

Doner v. Stauffer .793, 802 

J3onnell v. MaXeer 764, 766, 767 

Donnelly v. Johnes 293 

Donnington v. Mitchell 196 

Donnor v. Quartermas. . t . .771, 772 

Donoghue v. ShuU 424 

Donohugh's Appeal 215 

Donohugh V. The Library Co. of 

Phila 215 

Donoughue v. Callanan 851 

Donovan t). Donovan 149, 348 

V. Miller 648 

V. Park Corp 684 

» V. Pennsylvania Co... . 685 

Dooley v. Watson 311 

Doolittle V. Smith 658 

Doran v. MoConologue 129 

Dormer v. Fortescue 776 

Dortnitzer v. - German, etc., 

Soc 173 

Dorr V. Shaw 656 

Dorris v. Morrisdale Coal 

Co , 19 

Dorrow* . Kelly. 270 

Dprsey v. Clarke 148 

■V. Dodson 519 

V. Garey ,. ..89, 233 

Dorsey Machine Co. v. McCaf- 

,frey .?... 345 

Doty V. Judson 325 

V. Martin. 731 

V. Mitchell. .-. . . 189 

Dougan, In re ."". 105 

Dougan v. Bemis T. 148 

V. Blocher 619 

«. GrellCo 482 

». Macpherson 408 

Dougherty v. Dougherty 326 

V. Jack 431 

V McColgan. 260 



Dougherty Bros. v. Cent. Nat.- 

Bk 584 

Doughten v. Vandever 224 

Doughty V. Gooney 628 

V. Doughty ' 647 

p. Savage 430 

Douglas, In re 214 

Douglas V. Douglas 507 

V. Fargo 669 

Douglass V. Brice 156 

V. Fagg -. . . 535 

V. Grant 744 

W.Russell. - 278 

V. Wiggins 681 

Doutney w. Lambil 613 

Dow u. Bank ...^.. 485 

Dowd V. Holbrook 148 

Dowell V. Dew 331 

V. Goodwin 647 

W.Mitchell 63 

Dowers v. Hutchinson. . . ." 205 

Dowie V. Driscoll -7-. . 399 

Dowling V. Betjemann 599 

■ U.Seattle 289 

Downe ti.-Morris 256 

Downer v. The Bank . . . .' 465 

Downes D.-Bennett! .7 64 

w„ Gra^ebrook 772 

V. Jennings 434 

Dpwney v. Silva 59 

Downing v. Grisby 766 

V. Wilcox 530 

Downs V. Collins 786 

V. Rickards 175 

Dows V. Chicago 668 

V. Durfee 763 

Dowse V. Gorton 536 

Doyle V. Doyle 202 

Doyle V. Sleeper 156 

V. Whalen 107, 221 

Doylestown Co. v. Brackett. . . . 441 

Draeger v. Draeger 288 

Dragoo V. Dragoo 605 

Drake v. Bioknell 644 

V. Brady '. 591 

V. Glover 495 

V. Root 254 

e. Wild.... 318, 497, 498, 506 



TABLE OF CASES. 



Ixvii 



[The references are to the pages.] 



Drake Medicine Co. v. Glessner 718 

Dransfield v. Dransfield 869 

Drant v. Vause ^23 

Draper v. Ashley 545 

Drayton ». Chandler. . . 267 

Dresbach v. Minnis 480 

Dresel v. Jordan 628 

Dresser v. Dresser 136, 139 

U.Hartford 313 

V. Hartford Co 314 , 

V. Norwood 461 

Drew V. Lockett 542 

r. Wakefield 165 

Dreyfus v. Peruvian Guano 

Co 856 

Dringer v. Jewett 443 

Dr. Miles Medical Co. v. Park 

& Sons Co 7-.... 389 

Drost V. Hall 780 

Drown v. Ingels 314 

B.Smith 680 

Drug Co. ». Mfg. Co... 652, 728, 730 

Drum V. Stevens 620 

Drummond v. Pigou , 672 

Drury v. Foster 494 

V. Inhabitants of Natick . . 215 

V. Molins 732 

Dryden v. Hanway 153 

Dubois V. Dubois 750 

Du Bois Boro. ». Water JVorks. . 334 

Du Bose V. Kell ? 393 

Dubourg de St. Colombe's Heirs 

V. United States. 758 

Dubowski V. Goldstein. . . v . . . .' 386 

Dubs V. Dubs 108 

Duchess of Kingston's Case 

479, 480, 496 
Ducktown Sulphur Co. v. Fain. . 657 

Duckworth v. Jordan 509, 525 

Ducommun's Appeal 247 

Dudley v. Barrett : 288 

V. Bosworth 158 

V. Mayhew. 712 

_ a. Minor. 350 

Dueber Watch Case Mfg. Co. v. 

Doughterty 69 

Duerden v. Solomon 265 

Duff V. Rose. 327 



Duffield's Appeal 182 

Duffield V. Hue 678, 687 

" V. Rosenweig 678 

Dufford V. Smith 240, 244 

Duffy V. Wilson 156 

Du Houmelin v. Sheldon. .109, 516 

Duke V. Hague 766 

Duke of Ancaster v. Mayer 

538, ,564, 565, 566 
Beaufort v. Berty. . .832, 864 

U.Glynn 652 

u:Neeld 328 

Bolton V. WiUiams. .... 664 

Dorset v. Girdler 858 

Hamilton .v. Lord 

Mohun 404 

Leeds u. The Corpora- " 
tion of New Radnor. . 783 

Leeds u.PoweU 783 

Marlborough v. Godol- 

phin .'.....- 144 

Norfolk's Case 230 

Portland u. Topham. . . . 438 
Somerset v. Cooksoh. . . . 695 

Diilaney u. Scudder 299 

Duleyw. Duley 790 

Dull's Appeal.. 750, 859 

Dulles's Estate 228, 229 

Dumars u. City '. .669 

Dumfries (Provost of) u. Aber- 

crombie. ....-; .T 225 

Dummer v. Corp. of Chippen- 
ham 847 

V. Pitcher 506 

Dtinond u. Magee.^T 202 

Dumont u. Dufore 606 

u. McDougal 278 

u. Peet 655 

Dumpor's Case 110 

Dunavant v. Fields.'. 771 

Dunbar u. American Tel. Co;.,. . 389 

V. Morajeska 859 

Duncan's Appeal .- 433 

Duncan v. Duncan 506 

U.Hayes 700 

.,». Lyon.. 629,. 647 

u. Railway Co 731 

V. The Iron Works 688, 728 



Ixviii 



, _ TABLE OF CASES, 
[The references are to the pages.] 



Duncan Co. v. Lane 453 

Dunckei v. Dunckel 620 

Buncombe v. Richards 395 

Duncuft V. Albrecht 594 

Dundas's Appeal 175 

Dundas's Estate 408 

Dunham v. Presby , 73 

Dunklee v. Adams 312 

Dunkley v. City. . .' 286 

V. Dunkley. 199 

Dunklin v. Wilkms " 285- 

Du9lap V. Clements 554 

V. Durilap , . 564 

V. Gibson 441 

■ Dunlop Tyre Co. v. Dunlop 

Motor Co 308, 723 

Dunn and Biddle's Appeal 99 

Dunn V. ChambSrs 371, 405 

V. City of Superior 324 

V. Dunn 470 

V. Michigan Club 281 

V. Stowers ....... i 615 

V. Yakish 589 

Dunne v. Bjrne ,. 216 

W.Cooke..' 249 

V. Cunningham 171 

Dunphy v. Kleinsmith 805 

Dunshee p. Dunshee 507, 610 

Dunston w: Paterson. . 493 

Duplex Printing Co. v, Deer- 

ing 391, 392 

Du Pont V. Du ^ont. 409, 735 

!). Temple 755 

Dupuy V. Johnson '539 

Duquesne Bank's Appeal 376 

Durant v. Comegys 629 

V. Smith 136, 142 

Durell V. Pritchard 637, 641 

Durfee v. Harper 597 

!). Old Colony R. Co.... 737 

V. Pavitt 151, 158 

Durhaip v. WadUngton 322 

Durham Tobacco Co. v. Am. 

Tobacco Co 723 

Durling v. Hammer 159 

Durr V. Bowyer 198, 201 

■ Dursley v. Fitzhardinge 858 

Dusbiber v. Melville 382 



Dusenbery v. Bidwell. ~ 68, 344 

Dustin V. Brown 34C 

Dutcher v. Hobby 546 

Dutton's Estate 283 

Dutton V. Dutton 206 

Duvall V. The Farmers' Bank. . . 201 

D'Wolf V. Pratt 624 

Dyar v. Walton & Co 752 

Dye V. Parker 368 

Dyeing Wks. v. Calderine.. .637, 732 
Dyer v. Clark.. -792 ' 

V.Dyer 147, 153, 

155, 163 
, V. Riley.-. 248 

V. Shuutlifif 174 

Dyett V. Central Trust Co 189 

V. IsTorth Am. Coal Co . . . 189 

Dykeman v. Jenkines 210, 214 

Dyke's Estate, In re 330, 331 

Dyker L. & I. Co. t>. Cook 612 

Dyott's Appeal 242 

Dysart v. Ctow 533 

Dzuris V. Puree 327 

E 

Eachus V. Moss 636 

Eagan v. Conway 57 

Eagle V. Franklin 767 

Eagle Glass Co. v. Rome 692 

Eaglesfield v. Marquis of Lon- 
donderry 320 

Eakle v. Ingram 98 

Earl v. Hateey '. . . 243 

Earl of Aylesford v. Morris. . . 373, 376 

Bath V. Sherwin 659 

Clarendon v. Hornby. . . . 770 

Egmont V. Smith. ... 589 

Jersey v. Dock Co . . 574, 575 
Kildare v. Eustace. . . .-. 78, 90 

Lucan, In re 128, 602 

Oxford's Case 20, 643, 

645, 652 
Salisbury v. Cecil ....... 846 

Sheflfield v. London Joint 

Stock Bank 459, 465 

Earl Mexborough v. Bower 637 

Spencer v. Peek 858 



TABLE OP CASES.. 
[The references are to the pages.] 



Ixix 



Barley's Appeal 701 

Earlom w^Saunders 614, 516 

Early v. Priepd. 771 

Earp's Appeal..'. 99, 101 

East & West R. Co. v. E. Tenn., 

Va. & Ga. R. Co 736 

East India Co. v. Atkyns 259 

'v. Boddam..302, 308 
East Retvord (Burgesses of) v. 

Thomas De Hercy -640 

Easterly w. Keney. . 110 

Eastern Milling Co. v. Eastern 

Export Co , 291 

Eastern Oregon Land Co. v. 

Willow River Land. Co 727 

Easterti States Lumber Assn. v. 

' U. S.-. -. 389 

Eastes v. Russ 386 

Eastman v. Amoskeag Co 699 

, V. Palmer 372 

V. Plumer. 627 

V. Provident Assoc. . . . 318 
Easton v. London, etc., Bank. . . 491 
Eastwood V. Standard TVIines 

Co 485 

Eaton V. Barnes 117 

V. McCaU , \... 78 

». Trust Co 112 

i-. Watts. 140 

w. Whitaker .' 621 

Eberhardt v. Perolin 138 

Eberle v. Heaton. . . .". 328 

Ebert v. Arends 312, 628 

Eberts y. Eberts 403 

Ebrand v.'Dancer 156 

Echelkamp v. Sohrader 684, 687 

Eckels V. Weibley '701 

Eckman v. Eckman 752, 861 

Eddowes, In re 144 

Edelman v. Latshaijir 365, 595 

V. Schwartz 795 

Edelsten v. Edelsten. 718 

Edgar v. Donnally 159 

Edge V. Worthington 578 

Edington ». Fitzmaurice. . . .349, 353 

Edison Co. v. Edison Co.. . .721, 722 

V. Po|wer Co. ...... . 612 

'Edler v. Frazier 278 



Edmonds's Appeal 752 

Edmonds v. Crenshaw 248 

Edmondson v. Dyson 105 

' ^ V. Jones - 368 

Edmunds v. Crenshaw 471 

Edsell V. Nevins 861 

Edward v. Cheyne 197 

EdwaVds v. Applebee 594 

V. Banksmith. ........ 471 

V. Barstow 569 

v.. Bay State Gas Co . . 545 

V. Burt 373 

V. Culberson 168 

W.Edwards.. 128, 150, 156 

V. Graves 89 

V. Haeger 685, 687 

V. Jones :..... 182 

V. Lo*ndes 89 

V. Milledgeville Water 

Co 734 

!). Parkhurst 288 

V. Trumbull ' . 579 

Edyall V. Hunston 13, 640 

Egbert v. Brooks 244 

Ege V. Koontz 323 

V. Medlar.. 108 

Egerton v. Brownlow 104 

Egjfptian Co. v. Gas Co 491, 737 

Ehleringer v. Moriarty 324 

Ehrhart v. Esbenshade 528 

Eib V. Martm 290 

Eichbaum v. Sample 595 

Eichoff V. Scott 153 

Einstein v. Bank of California. . 672 

Eivert v. Jones 146 

Elaterite Paint Co. i. Frost 674 

Elder v. Elder 617 , 

V. Jones 285 

Eldridge v. Dexter and Piscata- 
quis R. R. Co 318 

«. Eldridge ...777, 778 

W.Hill 656; 658 

«. See Yup Comgany. . 120 

W.Smith "..172, 859 

Electric Boat Co. v. Lake Boat 

Co 57 

Electric Co. w.^Cathohc Soc 288 

Electric Light Co. v. Bates 413 



IXK 



TABLE OF CASES. 
[The references are to the pages.] 



Elgin Nat. Watch Co. v. 111. 

> Watch Case Co 724; 725 

Elibank v. Montolieu 178, 197 

Eliot's Appeal 214 

Eliot t). Attwill :... 230 

V. Merchants' Exch. 805 

Ellcock V. Mapp 164 

EUenborough, In re 127 

Elliot v. Elliot 403 

V. Merryman 475, 495 

EUiotson V. Feetham 705 

Elliott V. Armstrong 153, 154 

V. Carter 564, 566 

V. Fisher 516 

V. Ins. Co ' 485 

V. Jdnes .'.... 598 

». Loftin 514, 522 

V. Merchants Bank 157 

V. Pool 243 

Elliott's Ex'rs' Appeal 293, 426 

Ellis's Appeal. , . 459 

Ellis f. Cross 129 

W.Davis 340 

W.Ellis. 136, 620 

V. Fairbanks :- 539 

V. Feist 767 

w. Hill 768 

V. Lewis 602 

V. Musselman ? 423 

V. Nimmo. ; . 131 

w. Selby 227 

V. Southwestern Land Co. 

69, 537' 

». Tfeat r 607, 610 

V. Water Co 867 

W.Wren -685 

Ellison V. Ellison. 421, 424, 430, 431 

V. Ganiard 120 

w.Moffatt 66, 764 

Ellsworth V. M. T. Ames Co. . . . 148 

Elmendorf v. Lansing 248, 672 

Elrodd V. Cochran 157 

V. Lancaster 243 

Elwell V. Chamberlin 367 

Elwes V. Mawe 681 

Elwood V. Deifendorf 548 

Elwyn's Appeal 286 

Ely V. Johnson. .' 464, 684 



Emeric v. Alvarado 464, 470 

Emerson v. Davies « . . . . 713 

!;. Hall 286 

V. Schwindt. . ., 613 

Emery v. Lawrence 279 

Emirzian v. Asato 604 

EmmanueljColl. v. Evans 254 

Emmons v. Barton 285 ' 

v. Cairns 856 

Emperor of Austria v. Day. . 718, 738 
Empire Circuit Co. v. Sullivan. . 760 
Empire Laundry Co. v. Lozier . . 674 

Empire Supply Co., In re 667 

Employing Printers' Club v. 

Doctor Blossner Co 387 

Engberry v. Rousseau 6Q7 

Engineering Co. v. Turney 289 

.England v. Curling 786 

V. Downs 433, 435 

Englander v. Apfelbaum 72 

Englar v. Offutt. v 162 

English V. Lindley 455 

English & Scottish Merc. Co. v. 

Brunton 76, 293, 465, 466 

Ennor v. Hodson 189 

Enos V. Hunter 154 

V. Stewart 69 

Ensign v. Colburn 682 

Enslen v. Allen 611 

Ensley v. Ensley '. . 138, 139 

V. McWilliams 669 

Episcopal Academy v. Philadel- 
phia 215 

Eppeson v. Bluthenthal 720 

Equitable Co. v. Waring. .' 312 

Equitable-Gas Light Co. v. Bait. 

Coal Tar Co 612 

Equitable Life Assurance Society 

V. Brown 655, 760 

Equitable Loan Co. v. Lewman 496 
Equitable Mortgage Co. v. Lowe 553 
Equitable Trust Co. v. Donahue . 669 
^ V. Garris... . 596, 

597, 839, 851 

Erb's Appeal - 536, 550 

Erdman v. Mitchell 694 

Erdmann v. Gregg 572 

Erhardt v. Boaro 727 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxi 



Erickson v. First Nat. Bank of 

Oakland ,. . 726 

V. Inman . 291 

». WiUard 138 

Ericson v. Martin 768 

Erie City Iron Works o. Barber. 361 

Erie R. R. v. Smith 298 

Erlanger w. New Sombrero Phos- 
phate Go 414 

Erskine's Trusts .199 

Ervin's Appeal .639, 727 

Erwin V. Parham 370, 603 

Escanaba Co. v. Burns 288, 541 

Eshbach's Estate - , 125 

Eshleman v. Lewis 159 

Espert V. Wilson 608 

Esron v. Nicholas 495 

Essex V. Essex 786 

Estate of Gay 213 

Estate of Marti 135 

Estate of Reith 120 

-Estis V. Jackson 491 

Euans v. Curtis. 156 

Eudora Co. v. Barclay 574 

Euler !;. Schroeder 320 

Eureka & K. R. R. Co. v. Cal. & 

N. Ry. Co 657 

Eureka Laundry Co. w. Long .... 386 
Eureka Lumber Co. v. Satch- 

, well.., 534 

Easter v. Newmeyer 644 

Evangelical Assoc.'s Appeal. . . . 213 

Evans's Appeal 444, 518' 

'(Mary) Estate 247 

Evans v. Bagshaw 768 

». Bicknell 338,342 

V. Coventry.^ 863, 864 

». Duke 443 

V. Diincan 554 

V. Evans. 160, 161, 205 

<;. Gillespie. . . '. 181 

». Kimbell 273 

w. Kittrell 606 

!>. Knorr 181 

e. Llewellyn.... 322 

V. McKee ■ 146 

V. Mo., la. & Neb. Ry. . . 736 
V. Peacock ^ .374, 375 



Evans v. Reading Chemical Co.. 698 

V. Willute, : 63 

Evarts «. Steger 326 

Evenson, Inre. . . . .'. 101 

Everett v. Alpha Co 571 

Everett Piano Co. v. Mans 739 

Everett Waddey Co. v. Rich- 
mond Union . . . ." .' . . 694 

Everitt v. Everitt 398 

Everts v. Agnes 622 

Evertson v. Booth 554 

V. Tappen 169 

V. The Central Bank. . 546 

Ewart V. Nave-McCord Co 796 

Ewell V. Greenwood 690 

V. Tidwell 340 

Ewertsen v. Gerstenberg 729 

Ewing's Appeal 605 

Ewing f . Dutrow 341 

!). Litchfield. . .......307, 611 

P.Smith 188, 191 

Ewins V. Gordon 591, 608 

Exchange Bank v. Ins. Go 461 

V. McLoon 287 

Exch. Go. V. Compensation Bu- 
reau 641 

Exchange Tel. Go. v. Gregory.-. . 715 

Exel V. Wallace ' 105 

Exeter u.^Odibrne 103 

Exp. V. Tucker 739 

Exploration Co. i). United States. 443 

Express Co. u. Walker 461 

Exter V. Sawyer 414 

Eyre v. Countess of Shaftsbury 

829, 830, 831, 835 

V. McDowell .-. . 293 

». Potter 371 



Fabrique v. Mining Co 263 

Factors and Traders' Ins. Go. v. 

Murphy 666 

Fagan v. Troutman. . .154, 156, 157 

Fairbanks v. Lamson 216 

V. Snow 397 

w. Welshaus.- 290 

Fairbrother v. Shaw 621 



Ixxii 



TABLE OF CASES. 
[The references are to the pages.] 



Fairclough v. Swan Co 262 

Fair Estate ,..."... 101 

Fairfield v. Southport Nat. 

Bank 655 

Fairthorne v. Weston 787 

Falcke v. Gray 696, 603 

V. Scpttish Co. 538 

FaJes V. Russell 305 

Falk V. Turner. . ' 398 

Fall V. Eastin 80 

w. Elkins -....._..... 768 

Fall River Whaling Co. v. Borden 

793, 795 

Fallon V. McAlonen 204 

V, Railroad Co 595, 611 

Falls Lumber Co. v. Watkins. . . 486 

Fame Ins. Co.'s Appeal , . 537 

Panning v. Dunham 73, 377 

Fariba,ult v. Sater ...'... 352 

Faries' Appeal 108, 196 

. Farina v. Silverloek 718 

Faringer v. Ramsay 154 

Faris ji. Dunn 153 

Farley v. Blood 660 

Farmer v. Farmer 402 

V. Russell 72, 429 

Farmers' Bank v. Groves 345 

V. Ridge ave. 

Bank 798 

Co. V. Storage Co 314 

^ & Dr. Bank v. Fordyce 325 

" Fire Ins. Co. v. Baker 486 

Ins. Co. V. Jensen: 102 

L. & T. Co. V. Grape 
Creek.Coal Co.. .... 867 

Loan & Tr. Co. v. 

North. Pac. R. R. Co. 638 
^ Mech. Bk. v. An- 
thony 655 

& Mech. Bk. v. King 

160, 162 
& Mech. Ins. Co. v. 

Simmons .' 291 

& Merchants' Bank v. 

Farwell 69 

& Traders' Bank v. 

Milling Co 160 

Nat. Bank v. Sperling 464 



Farmers' R. Co! v. The Reno.Oil 
Creek and Pit Hole R. Co. 

637 
Farmington Sav. Bank v. Curran. 507 
Farmington Vill. Corp. v. Bank 752 

Famam v. Brooks ; . . . . 344 

Famham v. Campbell 861 

- V. Clements 149 

Famsworth v. Childs 469 

». Duffner... 364 

V. Strasler. 805 

Famum w.^Burnett 272 

V. Metcalf...... 256 

Fan- V. Farr 344 

V. Hobe Land Co 860 

Farrand ». Yorkshire Banking 

Co 77, 298, 455, 579 

Farrant v. Lovel 681 

Farrar v. Farraxs (Lim'd) . . . 172, 414 

V. Hazelden 813 

Farrell v. Cook ; . . fi98 

W.Lloyd 133, 153 

-*. Wysong 572, 573 

Farringtdn i;. Knightly 89 

Farris v. Ware 337 

Farson v. Fogg 631 

Farwell v. Colonial Trust Co 64 

V. Cotting 777, 778 

V. Gr. West. Tel. Co.. . . 443 

V. Huston 796 

Fassett v. Traber . . .' 539 

Fatheree «. Fletcher 156 

TFaucett v. Currier . 354 

Faulk V. Calloway 548 

Faulkner v. Davis 835 

V. Hendy 161 

V. Klamp 348 

Faure Electric Co., Inre. . .241, 409 

Paurot V. Gates 533 

Fausler v. Jones 153 ' 

Faust V. Haas. . . -. 355 

V. Hosford 344/ 345 

Paveaux, Inre 213 

Favill V. Roberts 487 

Fawcett & Holmes' Cont., In re 624 

Faxon v. Folvey 117 , 

Fay V. Howe 209, 226 

Fayreweather Will Case 341 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxiii 



Fearon v. Little 379 

Fears v. Brooks .180, 182, 190 

Feasel v. Noxall Co 674 

Federal Biscuit Co., In re 66 

Fee V. Sharke 592 

Feingold v. Roeschlein 150 

Felin v. Futcher rT 328 

Felix V. Rankin 771 

Fefarrahu. Spell 572 

Fell V. Brown 256 

Fellows V. Can Co 491 

V. Greenleaf 130 

V. Loomis 171" 

' «). Tann 195 

Feltham v. Clark '294 

Felton V. Ackerman 868 

Felty V. Calhoon 610 

Fenderson v. Feaderson. ...... 318 

E^ennell's Estate 204 

Fennings v, Humphrey 654 

Fenwick v. Bulman , 592 

V. Potts 577 

Ferchen^B. Aradt ,. 162, 163 

Ferebee v. Pritchard 433 

Feret!). Hill ; 356 

Ferguson's Appeal 700 

Ferguson v. Booth 156 

V. Ferguson 318 

V. S^k 643, 726, 750 

u. Guydon 481, 482 

Femie v. Young ' 699 

Ferns v. Chapman 404 

Fgrran's Estate 289 

Ferrell v. Ferrell 328 

Ferrin «.-Errol 652 

Ferris v. Am. Brewing Co 731 

B.' Burton 530 

V. Henderson 344 

V. Mullins 578 

Ferson v. Sanger .57, 328, 444 

Fertilizer Co. v. Boykin 635 

Fesmire's Estate 246 

Fesmire v. Shannon 247 

Fessenden v. Taft 149 

Fessler v. Hickernell 549, 556 

Festorazzi v. Church 217 

Fettiplace v. Gorges 184 

■ Pett's Estate 290 



FideUty Co. v. Buckley 537 

V. Long. . 549 

W.Phillips 535 

V. Roanoke Co 867 

V. Sousley 544 

V. Sturtevant Co. . . 283 

Fidelity Ins. Co.'s Appeal 858 

Ins. Co. V. Moore ... 19, 154 
Mut. L. I. Co. V. Clark. . 452 
Title Co. V. Graham. . . 128 
Trust Co. V. Archer. ... 657 
V. Kansaa Gas ' 

Co 868 

Fidler v. John 420 

Field V. Camp 168, 278 

V. Magaw 290 

V. Mayor of New York 279, 288 

V. Wilson. 344 

Field's Estate. . 99 

Fields V. Squires 594 

V. Stokley 695 

Fies V. R'osser 861 

Figh V. Taber. 459 

Filker v. Mowry 3l8- 

Filkins v. Severn 118 

Filler v. Tyler 187 

Filley v. Fassett : 718 

FUlman v. Divers 159 

Finalyson v. Crooks 272 

Finch Vi Parker 605 

V. Resbridger 860 

e. Shaw 454, 780 

V. Winchelsea 474 

' V. Woods-. 470 

Finck V. Granite Co 387 

Findlay v. Hosmer 554 

V. Keim 588 

Findley v. Koch 605 

Fine v. Lawless. ^ 368 

Fiae Cotton Spinner Ass'n. v. 

Harwood. 723 

Finegan v. Theisen'. .....' 410 

Fink V. Farmers' Bank 323 

' V. Mahaffy 550 

Finlen v. Heinze 609 • 

Finley W.Aiken... 589, 590, 597, 604 

Finnell v. Finnell 67, 572 

Firebaugh v. Bentley 749 



Ixxiv 



TABLE OF CASES. 
[The references are to the pages.] 



Fire Ins. Patrol v. Boyd 219 

Firemen's Ins. Co. v. Powell. . . . 316 
First Baptist Church v. Syms. . . 647 

First Nat, Bank v. Bache 160 

V. Bank 361 

V. Campbell . . . 152 

W.Clark 291 

V. Day 569 

V. Detroit Trust 

Co 866 

V. Dongan 110 

V. Dubuque. . . . 291 

V. Fowler 656 

V. Gustin Min- 
ing Co 810 

». Leech 450 

ti.O' Byrne 133 

I). Perris Irriga- 

^on Dist. . 297 
V. School Dis- 
trict 281 

V. State 286 

V. Wyman. . . . 559 
of Freehold v. 

Thompson. 548 
of Rock Springs 

V. Roder. . 554 
of Shreveport v. 

Randall. . . 807 

First State Bank v. Bridges 461 

First Trust Co', v. HI. Central 

R. R.Co 561 

Fischer v. Blank 718 

V. Riehl 760 

V. Woodruff. 647 

Fischli V. Fischli 202 

Fish V. CMand 404 

V. Dodge 704 

V. Fish 410 

V. Howland 574 

V. Leser 607 

V. Miller 403 

Fishblatet). Fishblate. . .^ 72 

Fishburne v. Ferguson 394 

Fishel V. Goddard 171 

Fisher v. Boody ^ 444 

V. Brown 583 

V. Budlong 358 



Fisher v. Fields 120, 121 

V. Filbert -. 204. 

V. Green 264 

V. Haney 681 

' V. Moolick 631 

W.Taylor 110 

Fisher Mills Co. w. Swanson. . 385, 386 

Fisheries Co. w. Lumber Co 541 

Fisk W.Gray 309 

w. Sarber 174, 243 

Fitch w. Fitch 373 

w. Weber 521 

Pitcher v. GriflBths. 5^2 

Fitschpn w. Olson 685 

Fitts w. Grocery Co 76 

Fitzgerald, Ex parte 858 

Fitzgerald v. Vestal 278 

Fitzpa€rick w. Featherst»ne.611, 613 

Fitzsimmons v. Joslin 367, 

» V. Ogden 453 

Flaceus w. Smith 63, 695 

Flacke w. Scottish Co 538 

Flaggw. Mann. . .264, 458, 464, 470, 
- 780 

Mfg. Co. w. Holway 718 

Flaherty w. Libby 731 

Flanagan w. Shuck 792 

Bank w. Graham 283 

Flanders w. Blandy 125, 133 

Flannery w. Coleman 429 

w. Jones 354 

Flarty w. Odium 286 

Flavel V. Harrison 720 

Fleischner w. Bank of McMinn- 

ville. . . . > 808 

Fleishman v. Woods 595 

Fleming's Estate 498 

Fleming w. Beaver 544 

w. Burgin 470 

w. Donahoe 115 

V. Hislop 698, 705 

w. Mershon 669 

V. Peterson 856 

V. Snook 731 

Fletcher w. Ashburner. 509, 510, 515, 
519, 526 

w. Bartlett 408 

V. Grover 532 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxv 



S*letoher v. Peck 455, 456 

■-«. Tuttle...64, 81, 420, 738 

Flight V. BoUand. ..-..'. 609 

, V. Cook 856 

Flinn v. Bagley 416 

Flint V. Le Heup 59 

Fliteraft v. Ins. Co .'462 

Ffora V. Glover 627 

Florence Sewing Machine Co. v. 

Ziegler 458 

Florida ». Morrison -. .360, 574 

-Flory V. Houck 622 

Flower v. Flower 206 

Floyd !). Jayne 648 

u. Smith 136 

Flynn, In re.. 832 

Fogg V. Goode 660 

Foley's Will, In re . . . .^ 142 

Foley V. Grand Hotel Co 313 

V. Harrison 132 

y. Hill 761 

V. Kirk 750 

Folkner v. Whitehurxt 684 

FoU's Appeal .595, 606 

FoUansbe v. Kilbreth 148, 159 

FoUansbee v. Scottish-Am. Mfg. 

Co 644 

Follett V. Tyall. ' 108 

Folsom V. Harr -610 

V. Marsh. 713, 716 

V. McCague 57 

Fontain v. Ravenel . 209, 224, 225, 228 

Fooks w. Williams .- 789 

ti. Fooks. : 792 

Foot V. Ketchum 530 

Foote V. Nickerson 207 

Forbes v. Adams 526 

Force v. Age-Herald Co 736 

V. City of Elizabeth 62 

Ford V. Borders 771 

V. Burleigh. 684, 685 

a. Dangerfield 165 

V. Easthampton Rubber 

Thread Go 130 

V. Fellows , T , 491 

W.Ford '.. .128, 514 

0. Foster 720 

V. Fowler. 138 



Ford V. Gamer 290 

». Hill 648 

V. Levis 152 

u. Olden ., 410 

w., Stuart 289 

V. Thomas 225 

W.White 455, 469 

Fordyce v. Bridges ^43 

». Library Ass'n 215 

». WiUis 115 

Foreman v. Bigelow 415 

Forester v. Van, Auken 327 

Forest Oil Go's. Appeal 541 

Forget V. Ostigny 379 

Forman v. Bank 549 

V. Brewer ' 69 

V. HoUoway 255 

Ferrer v. Nash 615 

Forrest Bank v. Ekstrand 318 

Forrest'w. Forrest 126, 157 

V. Prescott 565 

W.Smith ' 286 

Forrest of Dean Coal Mining Co., 

. In re 409 

Forrestel w. Forrestel 406 

Forsbrook w. Forsbrook 857 

Forster w. Brown Co 67 

W.Hale. 116, 117 

w. Rogers ^. . . . 703 

Forsjrth w. Forsyth ~. 515 

Fort w. Ins. Co 549 

FoAescue v. Lostwithiel & Fow- 

eyRy. Co 612 

w. barnet .'. . . 127 

Forthman v. Deters 273 

Fortney v. Carter 692 

Fort Smith Milling Co. w. Mikles. 332 

Fort Worth w. Bank. 153 

Fortunato w. Patten 295 

Forty Fort Coal Co. w. Kirkendall 25 

Fosdick V. Hempstead. . ., 225 

w. Schall..74, 557, 660, 661 

Foss w. Harbottle 414 

Foster's Appeal 510, 516 

Foster Hose Co. w. Taylor 312 

Foster Lumber Co. w. Bank .... 579 

Foster w. Barnes 791 

W.Clark 324 



Ixxvi 



TABLE OF CASES. 



[The references are to the pages.] 



Poster V. Johnson 632 

V. Oberreich 360 

' V. Trustees *..... 151 

t). Willson 139, 140 

V. Winchester. , . 72 

V. Wood 647 

Fothergill v. Rowland 730 

Foultz Co. V. Foultz Co 723 

Fournier v. Insurance Co 369 

Fourth St. Bank v. Millbourne. . 582. 

«. Yardley.288, 291, 

569 

Fouse V. GilfiUan 465 

Foust V. Moorman 767 

Fowle V. Lawrason. . j, 759, 760 

- V. Park. . .~ 389 

Fowler's Appeal 428, 813 

Fowler's Trust, In re 503, 504 

Fowler v. Att. Gen 227 

V. Bellinger 529 

V. Bott 303 

w. Fowler 592, 744, 746 

V. Maus ' 544 

Fox's Appeal 139 

Estate 110, 234 

Fox, Inre 553 

Fox Co. V. Hathaway 721 

Fox v. Davis _ 206 

V. Heffner 148 

V. Mackreth 173, 243, 400, 

408, 413, 414, 415 

V. Shanley .' 14B, 150 

u. Wharton.: 258 

Fraim v. Frederick. . . . , 458 

Fraker v. \Brazelton 615 

Frahch v. Despar 675 

V. Mahoney 413 

Frame v. Sliter 572 

Frampton d. Frampton 207 

Francis v. Francis 571 

V. Lawrence 809 

V. Wilkinson 404 

Frank's Appeal 149, 416 

Frank v. Basnett 654 

Franke v. Kelsheimer 441 

V. Ma'nn 735 

Frankel v. Frankel 672 

FrankUn's Estate 165, 235 



Franklin v. Ayer 264 

Franklin Ins. Co. v. McCrea., . . 57 
Mining Co. v. O'Brien 170 
Savings Bank v. Taylor 

467 
Tel. Co. V. Harrison ' 

606, 612 

Franklyn v. Tuton 728 

Franks v. Bollans 616 

Frantz v. Autry 671 ' 

V. BrOwn I 528 

Frary v. Booth 190 

Frasch, Inre 558 

Frasure v. Coal, etc., Co 651/ 

Frajme v. Taylor,, 515 

Frasier's Trustees v. Center. . . . 188 

Frazjer v. Brownlow 190 

V. Foreman 15.9 

' ' V. St. Luke's Church 235 

Freas's Estate ....239, 241 

Fredenburg v. Whitney 69 

Frederick's Appeal 127 

Frederick v. Haas 152, 164 

Fredericks v. Huber ■ . . 637 

Fred Macey Co. v. Macey 338, 

341, 413 

Freedley's Appeal 120 

Freeburgh v. Lamoreaux 610 

Freedland v. Cocke 764 

V. Dazey 813 

Freedley v. Jacoby 379 

Freeman v. Cooke 491 

V. Curtis 322 

V. Dwiggins 396 

». Eacho. 330 

V. Fairlie 260, 846 

V. Freeman 180, 181, 

389, 620 

V. Hartman 433 

V. Lomas 629 

V. Mitchell 641 

V. Paulson 590 

V. Poole 353 

«. Pope «421, 424 

». PoutreU *14 

V. Purvis.". 636 

V. Stewart 865 

V. Stuart 808, 865 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxvii 



Freeman's Settlement Trusts, In 

re 244 

Freemans v. Ammons 727 

Freer v. Davis 727, 850 

Freiberg v. Stoddard 163 

French v. Boston Nat. Bank 609 

V. French : 102 

«. Griffin 351 

V. Loyal Cqpipany 471 

V. Macale 311. 

V. Pittsburg Vehicle Co. 173 

V. Raymond 648 

V. Waterman. . .......... 191 

V. Westgate. . . . ." 143 

V. Woodruff 69, 172 

Frenzel a.-Miller 358 

Frewin v. Lewis 689 

Freyer v. McCord r 362 

Frey vogle v. Hughes 100, 195 

Frick V. Canning Co 491 

Fricke v.-Saie Dee, Co 65 

Fricker v. Ameiicus Mfg. Co . . . 169 

Friednjan v. Maltinsky 531, 534 

Fredrich v. Huth. . . . , 158 

Friend v. Lamb.: .600, 606 

Frierson v. Gen. Assemb. Presby. 

Church. 210 

Frisbee's Appeail 760 

- Fritch V. Bank 269, 534, 549 

Frith V. Cartland 160, 239 

V. Forbes 570 

Frizzle v. Patrick 699 

Froelich v. Swafford, 256 

Froelicher v. Oswald Iron Works 698 

Froidevaux v. Jordon 260 

Frolich w.'Aikman ._. 429 

Frontera Co. v. Abaunza 80 

Frorer v. Nicholson 150 

Frost ».,Beekman 458 

t). Libby ,...807, 812 

V. Los Angeles 700 

w. Spitley 860 

D.Thomas 671, 677 

Prothingham w.'^tacker.- .". 470 

Frue V. Houghton 595 

V. Loring 59 

Pry I). Lane. 373, 395 

Frye v. Partrid|e. . .,,.,,.,,,., 732 



Fudge v'. Payne. 744 

Fulham v. McCarthy 398, 410 

Fulkerson v. Taylor . . . ' 544 

Fuller V. Abbe 245 

V. Buice": 752 

«. Fisk ' 685 

, ». Glyn ■: . 478 

FuUington v. Kyle Lumber Co. . 386' 

FuUwood V. Fullwood 67 

Fulmele v. Inv. Co 353 

Fulton's Appeal .- 531 

Fulton V. Cojwell 744 

a. Loftis 397 

V. Miller 766, 771 

V. Moore : 506 

V. Oertling 682 

Punk V. Harshman 265 

Funston v. Twining 132, 133 

Furber v. Page 148 

Furniss v. Cruikshank 513 



Gable v. Columbus Cigar Co . . . 420 

V. Daub 498 

Gachet v. Morton 601 

Gadbury v. Ohio Gas Co 314 

Gadsden v. Brown 550 

Gage v'. Fisher 392 

V. Gates 191 

V. Griffin 860 

V. Schmidt 860 

Gage Lumber Co. v. McEldowney 569 

Gaines v. Brockerhofif 265 

V. Chew , 340 

V. Hill ". 556 

V. New Orleans (City of) 

447, 761 

V. Summers 149 

Gaither v. Gaither 341 

Galbraith v. Elder 171 

V. Galbraith 148 

i: Lunsford 495 

V. McLaughlin 371 

V. Wallrich 288 

Gale V. Abbott 636, 638 

V. Harby 159 

p. Kal^ntasjoo 387 



Ixxviii 



TABLE OF CASES. 
[The references are to the pages.] 



Gale V. Mundy 364 

V. Spalding ^... 729 

Gallagher v.- Fayette County R. 

R. Co 60 

». Northrup 463 

Galland v. Galland '. 202 

Gallatain v. Cunningham 403 

Gallego's Ex'rs v. Attohiey-Gen- 

eral. 209, 225 

Gallet V. Soap Co 723 

Galloway v. Finley 573 

Galush V. Sherman . . .) 396 

Galusha't;. Galusha 207 

Galveston R. Co. ' v. Cowdrey 

' 267, 283 

Galvin y. Britton 495 

Gambeli !)..Trippe, '. . 228 

Gamble v. Coal Co 459 

V. Garlock 606 

V. Loop.. 861 

Gamewell Fire Alarm Tel. Co. v. 

Crane 384 

Gammill v. Johnson 365 

Gammill Co. v. Board 668 

Gandy v. Fortner. ^85, 861- 

V. Weckerly 441 

Gangler v. Chicago R. R. Co . . . 542 

Gannett v. Albree 71 

Gano V. Gihuth 779 

Ga. Nor. Ry. 60. v. Tifton 737 

Gantt V. Amer. Cenl Ins. Co. . . 537 

Garber v. Henry 271 

Card V. Gard 58, 575 

Gardiner v. Bering 680 

Gardner v. Adams 285 

V. Gardner 189 

V. Hooper 198 

V. Knight: .' 356 

V. Lachlan. . 281 

V. McClure. ., 579 

V. Newburgh 700 

Garesche v. Levering Inv. Co. . . 238 

Garforth v. Bradley 199 

Garland v. Garland 203 

V. Harrington 278 

V. Smith 340 

Garlich v. Mutual Assn 74 

Gamer v. Garner 105, 322* 



Gamer v. Lyles 813 

Gamett v. Action ^ 515 

V. Macon 566 

Granham v. Skipper 578 

Gamsey v. Mundy ^. 129 

Garrajd v. Lord Lauderdale 129, 130 

Garratt v. Lynch. 304 

Garretson v. Cole 637 

Garrett v. Goff. . . ,, 625 

V. Kansas City Coal Min- 
ing Co 372 

V. Mining Co 607 

V. White 767 

V. WiBcinsop 158 

Garrick v. Garrick. . '. 621, 622 

Garrison v. Little 212 

V. Technic. Elec. Works 

364, 366 

Garside v. Norval ' '803 

Garson v. Green 572, 574 

Garst V. Charles 690 

Garth v. Sir John EKnd Cotton 

682, 683 

, V. Townsend 330 

Garvin v. Williams 403 

Garwood v. Garwood 469 

Gary v. Newton 605 

Gas Co. V. Aukrom 661 

Gas Company v. Broadbent .... 700 
V. Manhattan 

Corp 312 

Gaskell v. Gaskell 766 

Gas Light Co. v. Nixon 637 

Gas Light & Coke Co. v. Towse. 606 

Gass's Appeal 735 

Gaston v. Warner 413 

Gates V. Detroit Ry. Co 638, 639 

I). Fauvre 545 

V. Jacob. 255 

V. Johnston Lumber Co . . 686 

V. Megargel ' 491 

V. Paul 57, 120 

Catling V. Newell 339 

Gauche v. Milbrath 529 

Gaunt V. Fynney ^ . . . 697 

Gause v. Hale 106 

V. Perkins 686 

Gavigan v. Refining Co 703 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxix 



Gawthrop v. Fibre Co 550 

Gay, Estate of 213 

Gay V. Adams 325 

V. Gay. 530 

Mfg. Co. V. Camp ,. . . . 308 

Gayle v. Pennington 760 • 

Gaylord v. City. . , . 131 

V. La Fayette 104 

Gearhart v. Jordan 541, 545 

Geddes's Appeal 750, 793 

Geddes v. Pennington 366 

Gee V. Pritchard 716 

Geel V. Gordan 466 

iT. Goulden. .'. 459 

Geffert v. GefEert 314 

Geffry Downham v. Heylyn ap 

Blethyn 14 

Geiler v. Littlefield 494 

Geischaker v. Pancoast 472 

Geist's Appeal 290 

Gemmel v. Fletcher 369 

General Electric Co. v. Yost 

Co.^. 68 

General fetate's Company, In re 296 

Genet vl Beekman Ill 

Gtentry v. Lanneau 424 

V. McReynolds 203 

George v. Cleveland 670 

V. Kent 466 

V. Peckham .- 707 

W.Wood 468, 539 

Georgia Co. v. Warten. 357 

Georgia Fruit Exchange v. Turn- 

ipseed 385, 386, .387 

Georgia So. R. R. Co. v. Merc. 

Tr. & Dep. Co 284 

Gprber v. Upton 547, 622 

-Gerdine v. Menage 547 

Gerhardt v. Ellis 259 

Gerke v. Purcell 215 

German v. Chapman 731 

German All. Ins. Co. v. Van 

Cleave 657 

German-American Trust Co. v. 

Shallcross... 27 

German Bank v. United States. . 549 
German Corporation v. Aid 

'Society 372 



German Nat. Bank v. First Nat. , 

Bank 805 

German Sav. Bank v. Geneser . . 327 
Germania Iron Co. v. United 

States 324 

Germantown Pass. Ry. Co. v. 

Fitler 66, 312 

Gemer v. Mosher 36^ 

Geroso V. De Maio 429 

Gerrad v. Boden..' 277, 279 , 

Gerry v. Stimson 149 

Gest V. Packwood 274 

Getman's Ex'rs v. Beardsley. . . . 334 

Gettys V. Newberger 379 

Getz V. Federal Salt Co. .... . 384 

Gewin v. Shields .^341, 751 

Gibb e. Mintline 601, 607 

Gibbes v. Cobb 469 

». N. Y. Lifelns. C0....-399 

Gibblerw. Trimble 453 

Gibbon? v. Hoag. 444 

Gibbs V. Baltimore Gas Co 389 

V. Harding 205 

V. Marsh ,. . 143 

Gibson V. Amer. L. & T. Co. . . . 644 

V. Brown 615 

, V. Crehore 778 

V. Foote 149 

V. Goldsmid 594 

V. Hammang. 405 

V. Herriott 67, 74 

«. Jeyes 401, 836 

V. Rees 130 

V. Riehle 601 

Giffard v. Williams 767 

Giffen v. Taylor.'. 176, 369 

Gifford V. New Jersey R. Co. 

(The) 737 

V. Thorn 371 

Gihop's Estate : . . . 495 

Gilbert t;. Chapin 137 

B.Colt... 869 

». Groff 492 

V. Hewetson 171 

V. Hopkins 767 

V. Lewis. 181 

V. McCreary 507 

Gilchrist V. Stevensop 126 



Ixxx 



TABLE OF CASES. 
[The references are to the pages.] 



Gilcrest^. Des Moines 692 

Gile V. Dunbar 610 

V. Anslow 141 

Giles V. Harris 64 

Gilfallan v. Gilfallan 595 

Gill V. Ferris 731 

V. McAttee 470 

V. McFaddin 641 

V. Pelkey 315 

Gillespie v. Burlesoii 183 

B.Holland 402 

V. Moon 441, 617, 618, 745 

Gillett V. Bate 806 

V. Romig 259 

Gillette v. Murphy '. .-. 289 

V. Plimpton 154 

Gilliam v. McCormack 553, 556 

Gilliland v. Inabnit 78 

Gillis v. HaU 599 

GiilotK. Easterbrook..718, 721, 725 

Gilmanti. BeU 806 

». Brown 573 

V. Hamilton 225 

». 111. &Miss^Tel. Co.. 267 

». WUls 268 

Gilmer's Estate 125 

Gilpatrick V. Glidden 341 

Gilroy's Appeal 61 

Gins V. CofEnberry 598 

Ginsburg v. Woolworth & Co. . . 634 

Ginther v. Townsend . . .'. 607 

Gira a. Harris ; 609 

Giragosian v. Chutjian 65 

Girard Co. v. Cooper 70 

Girardv. Philadelphia. 230, 235, 856 
Girard Lite Ins. Co.'s Appeal 

515, 516 
Girard Life Ins. Co. v. Chambers 111 
Girard Trust Co. v. Avonmore 

Land Co. 267 
t). MeUor..ll9, 123 

D.Russell 232 

Girard Will Case 218 

Gish V. Jamison 605 

Gist, /nre 840 

Gittings V. Van Dom. 364 

Given's Appeal 643, 647 

Gladding v. Church 226 



Gladsden v. Brown 550 

Gladstone v. Birley 568 

Gladville v. McDole..^ 591, 622 

Glamorgan Coal Co. v. South 
Wales Miners' Federation. ... 694 

Glascott V. Lang 666 

Glasier v. Rolls 361 

Glass V. Ellison 254 

V. Hulbert.325, 441, 470, 618, 
621, 746 

V. Johnson 384 

V. Pullen 534 

' V. WiMte 217 

Glasscock v. Miner 364 

Glaze V. Drayton 591 

Gleason v. Earles 595, 604 

V. McPhersott 350 

Gleaves v. Paine 198 

Glen t). Brewing C^. 409 

V. Gibson . .'. 80 

Glencoe v. Olson 662 

Glendeening v. Johnston. .' 260 

Glendon Iron Co. v. Uhler. . . . . . 722 

Glengarry Cpnsol. Co. v. Boehmer 409 

Glenn v. Clark 498 

e. Glenn. . .- 189 

w. Statler 328 

Glenny v. Smith 718, 725 

Glenorchy ». Bosville. .104, 105, 106, 

121, 743 

Glenwood Mfg. Co. v. Sjrme. . . . 409 

Glidden v. Strupler 494 

GUdewell v. Spaugh 463 

Globe Mut. Lite Ins. Co. v. 

Reals :. 752 

Glos V. Knealy.,. 860 

Gloucester v. Wood 164 

Gloucester, etc., Co. v. Cement 

Co 599, 610, 617 

Glover v. Condell 144 

V. Falls. , 641 

«. Fisher 627 

V. Laundry Co.. , 157 

W.Shirley 731 

Gluckstein «. Barnes 413, 414 

Glyn V. Hood 294 

Gobble w.-Orrell 868 

GobeiUe v. Meunier 685 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxxi 



Goble V. O'Connor 355 

Goddard v. Gardiner. ...,...;. 848 

V. Ingepenne 12 

V. Sawyer. 272 

V. Snow .- ^ . . . 434 

Goddard Peck Co. v. MoCune. . 796 

Godfrey v. Harben 186, 337 

V. Hutchins 228 

w. Littel 782 

V. Rosenthal. . , 613 

Coding V. R. R. Co 606 

Godsall V. Boldero 379 

Gofft). Goff ;.*. .<'. . 436 

Going V. Emery .' . 226 

Golden v. Maupin 776 

Goldfield Mines Co. v. Miners' 

Union 694 

Golding V. Balatbat .....'. 684 

Goldman v. Goldman ; . . . 308 

^ «. Murray 288. 

Goldsmid v. Goldsmid 821 

V. Tunbridge Wells 

Imp. Co 702 

Goldsmith v. Guild .627, 629 

Goldsworthy v, Boyle. , 677 

Gollober 21. Martin. 459 

Gomm V. Parrott 779 _ 

Gompers v. Buck^tove Co 692 

V. Rochester 386 

Gooch V. Association for Relief, 

etc 214 

V. Bajcter. 576 

Good V. Brick Co. ..;... 636 

W.Harris. .'. . 182 

V. Herr 322 

V. Queens Run Fire Brick 

Co.. •. . 67 

V. Woodruff 272 

». Zook 399 

Goodale v. Wheeler .420, 425 

Goodall V. Roy .- 851 

Goodbum V. Stevens. .538, 776, 778, 

792 

Goodell V. Blumer ^60 

. ,- V. Goodell 173 

Goodhue.Co. v. Davis 409 

Gooding v. Reid , 869 

Goodloe V. Goodloe 620 



Goodman v. Carroll 

V. Grierson ; 

». Smiii 146, 

" V, Whitcomb 

Goodno V. Hotchkiss 

Goodnough v. Gallaway 

Goodrich v. City of Milwaukee. . 

V. Shaw 

,o.-Tel. Exch, Co 

~v. Tenney 

V. Wilson. . 

Goodrum v. Goodrum ..... 

Good's Estate 

Gbodson v. Richardson 

-Goodwin Co.'s Appeal. 

Goodwin v. MoMinn 

V. Pamell 

Goodyear v. Selz ^ 

V. Watson 

Goodyear's India Rubber Glove 
Mfg. Co. V. Goodyear Rubber 

Co :..... .720, 

Goo Kim V. Holt 

Gordon v. Brown 

Vi Claridy.*. 

V. Graham 

V. Green 

V. Johnson 

V. Lewis ; . . . . 

V. Munij 

V. Richardson . 

Gore v. Brian 

V. Gibson 

Gorha v. Travis . 

Gorham v. Arnold.' 254, 

v: Daniels 

Gorman v. Bonner 

V. Ins. Co 

V. MuUins 

Gorringe v. Irwell India Rubber 

Works 

Gorton, In re 

Goshen Co. v. Myers 

Gosman v. Pfistner 

Goss V. Lord Nugent 

V. Tracy 

Gossard v. Crosby 

Gottschall V. Happ 



782 
259 
159 
789 
744 
571 
102. 
■396 
637 
392 
170 
182 
375 
636 
596 
369 
166 
310 
544 



722' 
482 
311 
150 
271 
120 
67 
529 
667 
312 
545 
396 
668 
258 
102 
647 
461 
835 

293 
538 
709 
625 
622 
340 
733 
308 



Ixxxii 



TABLE OF CASES. 
[The references are to the pages.] 



Gotwalt V. Neal 378 

Goufeh V. Crane 620 

V. Williamson 624 

Gould V. Board 216 

V. Cayuga Nat. Bank 339 

V. Mayor of Atlanta 670 

V. Okeden 338 

Gourley v. Woodbiiry 767 

Gourley's Estate 101 

Gout V. Aleplogiu 718 

Gouverneur v. Lynch 463, 464 

Cover's Case 414 

Cover V.Hall 764 

Gov. Bldg. Institution v. Denny . 495 

Cowan V. Jeffries .790, 865 

Gower v. Sterner. 325 

Grady v. O'Reilly 272 

Craeff's Appeal 557 

Graeff «. Felix 57 

Cragg. V. Martin 420 

V. Maynard 750 

Graham, Inre. . 831 

Graham v. Citizens' Nat. Bank 

646, 648 

V. Cummings 760 

V. Graham 436 

«. Hackwith 306, 615 

«. Hollinger 349, 362 

V. Londonderry 197 

V. Long. . . '. 118 

V. Maxwell. 666 

V. Mutual Aid Soc 868 

W.Oliver 625 

». Pancoast 372, 396 

V. Samuel 468 

Grainaries Co. v. Ins. Assoc 743 

Grammel's Estate, Inre ,. 239 

Grand Chute v. Winegar 24, 62 

Grand Hotel Co. of Caledonia 

Springs v. Wilson 721 

Grandison v. Bank 548 

Grand Rapids Furniture Co. v. 

Haney Furniture Co. . . 668 
V. Trustees of School Dis- 
trict. . . . 868 

Grand Rapids Ry. Co. v. Grand 

Rapids 669 

Grand Trunk Railway v. Cook. . 737 



Granger v. French 286 

Grant v. Huschke 360 

D.Saunders 213, 226 

Grantham v. Goasett 598 

V. Kennedy 336 

Grape Creek Coal Co. v. Spellman 611 

Gratz V. Cohen 396 

Grauel tj. Wolfe 364 

Grauman v. Krienitz 496 

Graves v. Ashburn 688 

V. Graves 203 

V. Rogers 496 

Gray v. Beard 167 

h. Building Trades Council. 694 

». Chiswell 796 

V. Citizens' Gas Co 60 

V. Crockett 495 

V. Foster 657 

w. Fox , 240 

V. Malone 687 

V. Oxnard Bros. 73 

V. Pentland 849 

W.Russell 713 

V. Thompson 242 

V. Woods '. 746 

V. Zellmer _. 547 

Graydon v. Graydon .7 771 

Great Falls Mfg. Co. v. Wors-. 

ter 78,593, 666 

Qreat Lakes Co. v. Coal Co 612 

Great Lithia Spring Co. v. Great 

Bear Spring Co 720 

Great Luxembourg Ry. Co. t». 

Maghay 345, 413 

Great North of England Ry. Co. 

V. Clarence Railway Co 634 

Great West Ins. Co. v. Cunliffe. 761 

Green v. Allen 210 

ti. Bogue 169 

V. Canny 636 

«. Gates 121 

V. Coast Line R. R. Co. 

(The) 74 

V. Drinker 468 

v. Drummond 148, 151 

v: Duvergey ,. . . . 339 

V. Farmer 529 

V. Goodall 43^ 



TABLE OF CASES. 
[Thie references are to the pages.] 



Ixxxiii 



Green v. Green 161 

V. Groves 621 

V. Johnson 510 

t>. Keene 807 

v. Mills 64 

V. Morris R. R., Company 322 

V. Mulkey 791 

V. Putnam . . . i 771 

V. Richards '. . . 620 

V. Rick.' 471 

V. Roworth 405 

B. Rumph 106 

w. Slayter , 471 

'ti. Smith . . ..^. 316, 487 

w. Thresher 703" 

V. U. S. Bank 270 

B.White.'. 471 

w. -Wills , ; 677 

V. Winter 242, 243, 244 

Greenaway v. Adams 753 

Greene v. DarUng 529 

w. Dickson. . : , 742 

V. Kirkwood '. 383 

V. Louisville R. R. Co.. 59, 
668 

V. Mumford '669 

V. Smitl; 316 

Greenfield's Estate. .124, 291, 328, 
398, '406, 410 

Greenland ». W;addell 510 

Greenlaw v. Bank" 260 

Greenway, Ex parte 303, 303» 

Greenway v. Greenway .... 513, 514 

Greenwood v. Brodhead 800 

V. Greenwood. .509, 516, 
825 

V. Spring 416 

W.Taylor 554, 558 

Greer v. Baughman 154 

V. Greer 396 

Gregg V. Metropolitan Trust Co. 

559, 560, 561, 5Q2 

B.Sanford 668 

V. Thurber 60 

Gregoire v. Rourke. . .' 299 

Gregory's Ex'rs v. Forrester. . . . ^^64 

Gregory v. Bowlsby . 369 

V. Keenan ■.- 615 



Gregory*; Murrell 548 

W.Wilson 311 

. Grenada Lumber Co. v. Missis- 
sippi. . -. ,. . 387 

Gresley v. Mousley. .339, 344, 401, 

444 

Gretton v. Haward 499 

Grey «. Grey 155, 157 

V. Greenville & Hudson 

- Ry. qo 73t5 

Greybum v. Clarkson '238 

Grey de Wilton v. Saxon 731 

Gribbel v. Brown 268 

Griesfi v. Mutual Life Ins. Co. . . 61 

Grieve v. Grieve 328 

Gieveson v. Kirsopp. .......... 514 

Griffin, Matter of 120, 236 

Griffin v. Banks. . ,! ,205 

V. Cunningham 613 

w. Griffin 579 

V. Inv. Co 353 

Griffith V. Bank 601 

V. Bee!cher ,.~ 511 

V. Godey 395, 408 

V. Griffith 182 

.U.Phillips 770 

V. Stewart 593 

V. Tower Pub. C^o., Ltd.. 287 

». Witten 522, 52.4, 525 

' W.Wright. 482 

Griffiths V. Cretnejc 755 

V. Monongahela R. R. 

Co :... 636 

W.Robins 402 

Grifford w. Thorn 371 

Griggs w. Doctor 666 

Grignon w. Shope 398' 

Grim's Appeal 49'4 

.GHmes w.-Butsch 828 

w. Harmon 333 

Grimstdlne, Ex parte . , 838 

Grindrod v. Wolf 371, 373 

Grissell w. Swinhoe 506 

Griswold w. Gebbie 361 

w. Hazard 301, 318, 319, ' 
320, 870 

w. Sackett 249 

Grocery Co. w. Dowling 549 



Ixxxiv 



TABLE OF CASES. 
[The references are to the pages.] 



Grocery Co. v. Hinton 289, 795 

Groff's Appeal 736 

Groff V. Rohrer 325 

Grogan v. Cooke 807 

V. Valley Trading Co.. . . 265 

Grollman v. Ward & Co 461 

Groome v. Belt .- 68 

Grooms «. Grooms 591 

Gross V. Leber 317 

Grosvenor v, Flint 610 

V. Sherratt.' 401 

Groton Mfg. Co. v. Gardiner.283,"580 
Grove v. Bastard 856 

V. Hodges ■ . 356 

Grover's Case -. 414 

Groves v. Webber , 860 

Grubb's Appeal... 60, 685, 742, 760 

Grubb V. Cottrell 531 

Gmber v. Baker 285, 487 

Gruhn v. Richardson 369 

Grumley v. Webb 173, 355 

Grymes v. Hone ,..:... 293 

V. Sanders 339, 442 

Guaranty Co. v. County 868 

Guarantee Trust Co. v. Delta & 

Pine Land Co 80' 

Guckenheimer v. Kann 531 

Guerand v. Dandelet 731 

Guerin v. Stacy 309 

Guest V. Farley 102, 103 

«. Smythe , 413 

Guffey V. Smith 605 

Guild !)." Alien-. 235 

Guilbert v. Guilbert ■. 514 

Guillotte V. Poincy 677 

Guinan v. Donnell '. ' 407 

Guion V. Knapp . . . .' 5Z9 

Guiterey v. Esteves 378 

Gulf Refining Co. v. Hart "71 

GuUicksen v. Madsen 805 

Gump's Appeal 325, 745 

Gunn V. Black's Admtrx 170 

V. Brantley '........ 255 

V. Harrison 656 

Gunning v. Sorg 57. 

Gunsterw. TheScranton Ilumi- 

nating Heat and Power Co. . . 460 
Gunter v. Addy 545 



Gunter v. Halsey 624 

V. Williams , 190 

Gurletz v.In re 124 

Gumell V. Gardner. .288, 289, 290, 

293 

Guth Co. V. Guth - . . 723 

Gutheil Co. v. Montclair 860 

Guthrie v. Doud 647 

W.Gardner 152, 156 

V. Quinn^ 484 

Guy V. Woolridge 482 

Gwillim V. Stone 753 

Gwinther v. Gerding 337 

Gwynne v. Heaton. . . , '. 371 

H 

Haag V. Reichert 287 

H. & f. C. Ry. Co. V. McCarty. 329 

Haberman's Estate 435 

Habershon v. Vardon 212 

Hackett v. Alcock 308 

V. Reynolds 579 

u. Watts 579 

Hackney v. Butts 148 

Hackwith v. Damron 464 

Hadacheck, Ex parte 703 

Hadden v. Dandy 228 

V. Spader.- 807 

Haden v. Ware 322 

Hadley v. Clinton Importing Co 358 

V. Farsee 225 

V. Hopkins Academy. . 215, 
226 

V. Latimer 393 

" W.Pickett 574 

Haffey v. Lynch 628 

Haffner v. Dobrinski., 606, 619 

Hagan v. Bank 583 

V. Ellis 487 

V. Walker 805, 813 

Hagar v. Buck 300, 311 

Hagerstown v. Groh 258 

Haggerty v. McCanna 328 

Haggin v. Trust Co 217 

Hague V. West Hoboken 493 

Hahn v. Hutchinson 110 

Haigh V. Kaye. . , 176, 369 



TABLE OF CASES. 
^[The references are to the pages.] 



Ixxxv 



Haight V. Day. /. 144 

V. McVeagh 190 

Haines' Appeal : 861 

Haines ti. Allen 214 

V. Beach .256 

V. Ellis, 188 

V. Roydhouse 424 

. ». Thompson 263, 264 

Hairalson v. Carson 726 

HairS v. Judge 642 

Haisten w.^avannah, etc., R. Co. 621 

Haldeman v. Haldeman 735 

Hale V. AUinson 657 

V. Bowler Ill 

!/. CuUen 170 

I/. Everett ^.. 735 

V. Hale 835 

V. Henrie 793 , 

V. HoUon 278, 298, 373 

V. Home 258 

V. Plummer 792 

D.Stone..' _. . 181 

V. Wilkinson .603, 604 

V. Wilson 785 

». Young. .■ 742 

Haley v. Ins. Co 409, 744 

Hall's-Appeal 386, 635, 858 

Hall's Estate 791, 792 

Hall, Inre 464 

Hall, Matterof 238 

Hallw. Bljss...., 174 

V. Ca,yot 583 

V. Cole 533 

V. Congdon. 149 

V. Cushman 542 

». Davis -. '. .. 378 

V. Denckla. ., 265 

V. Eagle Ins. Co 274 

». Ely 625 

V. Feeney 421 

V. HaU 129, 303, 498, 501, 506, 

573, 579, 780, 790 

». Hallet 414 

V. Harris ^i 533 

V. Hei^ninger 686 

hmies 598 

V. Hyer 656 

• V. Joiner. . . ., 62, 805, 807, 843 



Hall V. Jones 576, 591 

V. Knappehberger 409 

V. Lewis 260 

V. McDuff -. 579 

V. Moore 173 

». Nash 67 

V. Nester 63 

V. Patterson 336 

V. Piddpok.. .... .643, 770, 766 

V. Potter 380 

V. Smith 589 

V. Timmons 496 

' «. Tunnell -254 

V. Vernon 768 

V. Warren 604 

». Waterhouse. 184 

V. Winam 400 

Hallenback v. Rogers 156 

Hallesy v. Jackson 255, 605 

Hallet V. Aggergaard 379 

Hallett's Estate, /re re. 160, 161, 872 

Hallett w. Arapahoe Co 669 

V. Parker 589 

V. Thompson 110 

Hallett & Co., Inre 161 

Halleyj). Ball 190 

V. IngersoU 63 

Hallidie v. Trust Co. .' r 364 

Hallinger v. Zimmerman 360 

Hallows V. Fernie 353 

V. Lloyd. , 460 

Halls V. Thompson .......... 364 

Halo V. Schick. 264 

Halsey v. Convent P. E. 

Church.... 21 Ir 214, 225 

V. Peters -602 

Halstead v. The Bank of Ken- 
tucky. ...» 455 

Halyorsen v^ Halvorsen 672- 

Halvorson v. Trust Co 289 

Ham V. Goodrich 621 

1). Johnson 610 

Hamaker v. Schroers 308., 

Hambel v^ Hambel 139 

Hamberhn v. Terry. .". 340 

Hamblet v. Harrison 460, 

Hamburg-Bremen Firg Ins. Co. 
V. Felzer Mfg. Co. 315 



Ixxxvi 



TABLE .OF CASES. 
[The references are to the pages.'] 



Hamden v. Rice 217 

Hamer v. Sidway 119 

Hanlmersley v. Lambert 796 

,v. Smith 194 

Hamilton's Estate. . ■. 230 

Hamilton, In re 217, 135 

Hamilton v. AU^n 407 

V. Asslin 325 

V. Bank 451 

». Bishop... 180, 181, 182 

V. Carter..' 483 

V. Cummings 750, 751 

V. Davis 634 

jj. Dunsford 731 

i). Hubbard. 156 

V. Marks 662 

w. Nutt 469 

V. Rogers 279 

V. Semet Solvay Co. . . 707 

Hamilton Corp. v. Julian 699 

Hamilton Shoe Co. v. Saxey. . . . 693 
Hamilton Shoe Co. v. Wolf 72^, 725 
Hamilton Trust Co. v. Clemes . . 579 
Hamlen's Admtr. v. Bennett. . . . 495 

Hamlen v. McGillicuddy 808 

Hamlin v. Abell 360 

V. Stevens 599 

Hammer v. Westphal. .614, 615, 625 
Hammerly v. Mercantile Trust 

& Deposit Co 561 

Hammersley v. De Biel 356 

Hammond v. Hopkins 68, 174 

V. Messenger 300 

■Hammonds v. Barclay 568 

Hampson v. Edelenj 592 

Hampton v. Mayes. 572, 667 

V. Nicholson , 318 

V. Nourse 381 

Han. & St. Jo. Ry. Co. v. 

Nortoni 859 

Hanberg v. Storage Co 668 

Hanbury v. Fisher 136 

Hance's Estate 110 

Hance v. Truwhitt. 503 

Hanchey y. Hurley 291 

V. Southern Bldg. Assn. 73 

H.ancock v. Carlton 312 

V. Melloy 620 



Hancock v. Smith 160 

2). Wooten 805,808 

Hand v. Bailey y 392 

H. and T. C. Ry. Co. v. McCa'rty 329 

Handley's Exr. v. Fitzhugh 57 

Handley v. Stutz 810 

Handy w. Noonan 859 

Hapesley v. Bagley 859 

Haney v. Legg 152 

Hanf ord v. Blessing ' 264 

Hankins v. Layne 768 

Hanland v. Myers 201 

Hann v. Hann 856 

Hannat). Clark. ...'. 768 

Hanna's Extr. v. Raynolds 109 

Hannah v. Davis .^ 574 

V. Vensel 256 

V. Wahlberg 598 

Hannegan v. Hannah. . . . .~ 553 

Hannewinkle v. Georgetown .... 668 
Hanover Fire Ins. Co. v. Ger- 

mania Fire Ins. Co 637 

Hanover Milling Co. v. Metcalf 

. 717, 718 
Hanover Nat. Bank v. Blake . . . 430 

Hans V. Holler. . . .' 340 

Hansen v. Berthelsen 121 

V. Day 530 

Hanson v. Beaulieu 685 

f. Edgerly. 358 

V. Gardiner 684 

V. Hanson 513 

V. Ralston 647 

V. Sjostroto '. . 409 

Harbers v. Gadsden 624 

Harbison v. Lemon 396 

Harbison- Walker Co. v. Stanton . 386 

Harcrow v. Gardiner 72 

Hardesty v. Richardson 620 

Hardigree v. Mitchum 322 

Hardin v. Cunningham 496 

V. Ferguson 496 

Harding v. Egin 327 

V. Fuller 650 

w. G}lyn..l39, 140, 143, 144 

V. Handy 394 

V. Lafned. 240 

V. Parshall 615 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxxvii 



Hardoon v. Belilios 245 

Hardware Co. v. Bonding, etc., 

Qo ;. 289 

W.Horn 152 

Hardwick v. Forbes 341, 

Hardy, Ex parte . . . 524 

Hardy v. Hardy 116, 159 

V. Jones 72 

V. Martin 732 

V. Sproule ^. . . 538 

Hargett v. Bell. .^ 667 

Hargis v. Robinson 550 

Hargreaves v. Korcek 397 

Harkins'on's Appeal '. . . 386 

Harkness v. Fraser: 401 

Harkrader ». Wadley 653 

Harlan v. Maglaughlin 424 

Harlan County v. Whitney 548 

Harland v. Binks 129 

K.Trigg 1,39, 141 

Harle v. Brennig 604 

Harlow !). Bartlett 291 

V. Publishing Co 730 

Harmer v. Gwynne -. 656 

Harmon v. City of Omaha 668 

w.Wagener 814 

Harms v. Stem' 71 

Harnett v. Yielding.' 604 

Harney v. Pettaway. 379 

Harp V. Calahan 254 

Harper v. Archer 159 

w. Ely ....". .268, 458 

V. Harper 429 

V. Phelps. 141 

V. WilUams . .- 576 

Harpham v. Shacklock 452 

Harraway v. Harraway ....-..,. 410 

Harrigan v. Smith 598 

B.Gilchrist.' 58 

Harriman v. Tyndale 628 

Harrington v. Chavez 684 

». Pier. ..".209, 211, 214, 
/ 219, 224, 225 

W.Rutherford 356 

It. Watts 212 

Harris v. Amer. B. and L. Assoc . 483 

t). Arnold 470 

i V. Bamett. .. j ....... i . 119 



Harris v. Chamberlain , . . 392 

V. Elliott 153, 156 

V. Ferguson . ; , 532 

V. Harlan 574 

«. Harris 146, 154, 190 

V. Knickerbacker 624 

V. Lee. 203 

B.Parker.. 173, 416 

V. Powers 777 

V. Stewart 444 

V. Thues 384 

V. Tyson. . .^ .- 358 

V. Warner 535, 536 

V. Youngstown Bridge Co. 285 
Harris Banking Co. v. Miller 

126, 660 
Harrisburg Bank v. German. . . . 545 

V. Tyler 159 

Harris County v. Campbell. .... 288 

Harrison v. Brophy 217 

V. Cole 541 

V. Craven 369 

V. Deramus 626 

V. Eldridge 774 

B. Forth 456 

V. Glucose, Sugar Rfg. 

Co ; 386 

v.Godd. 728 

V. Guest. 370 

V. Harrison 451 

V. Jameson 325 

V. McMennony 119 

V. Mulvane 174 

V. Stewart 187 

V. St. Mark's Church. . 704 

V. Tierney' 159 

u'Town 603 

V. Wright 291 

Harrisonburg v. Roller. . . . .671,' 677 
Harrisons v. Harrison's Admr. 

136, 139 

Harrod v. Burke 472 

Harrold v. Lane 149 

Hart's Estate . ..... .^ 237 

Hart V. Bayliss '. 95, 189 

V. Farmers' Bank (The) 

461, 474 
ti. Hart 620 



Ixxxviii 



TABLE OF CASES. 
[The references are to the pages.] 



Hart V. Herwig 653 

V. Mayor of Albany. . .684, 699 

t). Oliver 807, 808 

V. Sansom 78 

V. Seymour .'.... 120 

V. TenEyck 580 

Hartford v. Chipman .- . . .' 750 

Hartley's Appeal 264 

Hartley v. Hartley 146, 154, 156 

V. Marietta Co • 393 

Hartman v. Wells 729 

Harton v. Harton 181 

Harton v. Little W 

Hartopp V. Hartopp ....... 367, 405 

Hartshorn v. Smart 621 

V. South Reading. ... 707 
Hartshorne v. Hartshome. . . 774, 779 

Hartwell v. Smith 535 

Hartz V. Schrader 749 

Harvard College v. Armory. .... 240 

Harvey's Estate. . 186, 337 

Hatvey v. Aston 382 

V. Benmo 313 

V. Gardner 117 

V. Harvey 180 

V. Mount 405 

W.Smith. .'. 352 

Harwood v. Kirby . . 768 

, Haselden v. Hamer 579 

Haseltine v. Smith 285 

HaskeU ». AUen 782 

B.Sutton 750 

Haskett v. Alexander 136 

H^kins V. Kendall 165 

Hassam v. Day ,- 767 

Hastings v. Cropper 647, 660 

t). Orde 129 

Hatch V. Cobb 630, 754 

-». Dana 416, 810 

■V. Hatch 403 

Hatcher v. Hatcher 168, 621 

Hatchett v. Hatchett 143 

Hatfield v. Cline 420 

V. De Long 64 

Hathaway v. Brady 325 

Hattiesburg Lumber Co. v. Her- 

rick 760 

Hatton V. Johnson 765 



Hatton V. Kansas City Ry. Co. . . 684 

Haughan v. City 648 

Haughwout V. Murphy 457, 470, 472, 
589, 592 

Hauk V. Brownell 352 

Hauley v. Tresilian 14 

Haupt V. Unger 154 

Hauselt v. Harrison 571 

Hauser v. Harding 731 

Haven v. Adams ....'. 471 

W.Foster..... 321, 323 

Havens v. Sackett 506 

Haverford L. & B. Assoc'n v. Fire 

Assoc'n ' . . . 545, 647 

Haviland v. Bloom 201 

, u, Willets 321 

Haw. Com. & S. Co. v. Kahului 

R. Co 689 

Haward v. Peavey . „ 510 

Hawarden v. Youghiogheny & 

Lehigh Coal Co 693 

Hawkins's Appeal 404 

Hawkins v. Doe 6D0 

- V. Elston 265 

V. Ha;wkins 146 

Hawkridge v. Burrill 255 

Hawksworth v. Hawksworth.833, 834 
Hawley Furnace Co., In re. . 293, 295 

Hawley v. Clowes 681, 683 

i). Cramer 414 

W.James 245, 520 

i>. Sheldon 608 

V. Upton 416 

Hay V. Alexandria R. R. Co. ... 63 • 

V. Marshall 758 

Hayden v. Cabot 536 

n. Huffs 550 

Hayes's Appeal 767 

Hayes »., Hayes 299 

«. Kershow 123. 602 

V. O'Brien 608 

e. Schall " - 66 

V. Southern, etc., Ass'n.. .~" 74 

V. Tabor - 100 

v. Treat 793 

V. Ward 549, 551 

Haygarth v. Wearing. 351, 371 

Haymaker's Appeal 420 



TABLE OF CASES. 
[The references are to the pages.] 



Ixxxix 



Hayman's Appeal 355, 420 

Haynes v. Carr 214, 216 

V. Gaines 265 

V. Harriman 405 

V. Hedrick 701 

Hays's Estate, 99, 111, 188, 192, 355 

Hays V. Anderson 272 

w.jBouchelle 782 

». HaU 591 

V. Hays : 750 

V. Jackson 564 

V. Leonard , 188 

D.Quay 119 

Haythom v. Margerem 860 

Hayward v. Andrews. ......,,. 299 

V. McDonald 662 

Haywood v. Brunswick Bldg. 

Soo 732 

t). Cope 603 

V. Judson 771 

Hazard v. Irwin 360 

~ Hazeltine ». B. & M. R. Co 735 

Hazen v. Durling 814 

V. Lyndonville Bank. ( . . 754 

V. Thurber 774 

Hazlett V. Pollack Stogie C6. . . .720 

Head v. Godlee 520 

V. Meloney 754 

Hpal-w. Coal Co 272 

Healey v. Alston 97 

Health Dept. v. Purdon 701 

Healy v. Rowan 204 

Heaney v. B. & M. Com. Co. . . . 687 

Heard v. Pilley . . ^ 148 

Hearle v. Greenback 502 

Heartley v. Nicholson 127 

Heath v'. Haile 258 

V. Jones 328 

W.Page.. 41^428- 

Heathman v. Hall 182 

Hktbn V. Bank 397 

V. Packer 701 

Heatwole v. Gorrell 308 

Hebb V. Moore 541 

Hebert v. Mut. Life Ins. Co 594 

Heburn t>. Warner 191' 

Hechelman »., Geyer. . .". 409 

Hecht V. Colquhoun ;...,. -60 



Hecht V. Furniture Co. 530 

Heck V, Clippinger 181 

Heckard v. Sajre 628 

Heckman's Estate 608 

Heckman v. Heckman 672 

Heckscher v. Edenborn : 353 

Hedderly v. Johnson. .• 613 

Hedges v. Dixon Co 65, 68 

«. Mehring 531 

Hedin v. Minneapolis Institute. . 351 

Hedrick v. Firke 599 

Heer, etc., Co. w. Railway Co. . . 707 

Hefteman v. Burns 341 

Heffran v. Hutchins 677 

Hefner v. Vandolah 482 

Hegeman v. Hegeman 286 

Heidenheimer v. Bauman 164 

Heflman v. Lebanon Ry. Co. . . . 642 

V. Union Canal Co 63 

Heine v. The Levee Commis- 
sioners 63 

Heininger v. Meissiner 766 

Heinrich v. Harrigan . . 662, 663, 664 

Heinz Bank ' 811 

Heiskell v. Trout. . . '. 165 

Heisler v. Aultman 544 

Heist V. Baker ^ 672 

Heister (Lessee of) v. Fortner. . . 468 

V. Madeira. . 260, 264 

Helbreg w. Schumann. 394 

Helfenstine v. Garrard.^. 102 

Hellen v. Crawford 562 

Heller v. McGuin. . . .^ 601, 615 

HeUman v. McWilliams 119, 129 

Helm V. Brewster. 422 

Hehn v. Darby's Admrs. 819 

V. Trust Co 546 

Helme v. Philadelphia. Life Ins. 

Cor 493 

Helmick v. Davidson 57 

Hemlore v. Smith 788 

Helsel Estate 415 

Hemingway v. Coleman .... 371, 402 

Hemmick v. Standard ,Oil Co.. . . 68 

Hemming v. Maddick 537, .854 

Hemphill's Appeal 238, 240 

Hemphill's Estate 133 

Hemphill v. Moody. ...... .317, 320 



xc 



TABLE OF. CASES. 
[The references are to the pages.]! 



Hempler »; Hastings 668 

Hemsley v. Meyers. 653, 667 

Hendershott t). Henry 495 

Henderson & Co. v. U. S. Nat. 

.Bank 291 

Henderson v. Burton 819 

V. Carbondale Co. . . . 314 

V. Company 557 

V. Dickey 327 

V. Hays 601 

V. Henderson 126 

Henderson's Estate 101 

Hendrick v. Whittemore .^ §36 

Hendricks v. Robinson 419, 809 

Hendrickson w. Hinckley. ..;... 647 

Hendrix v. Barker 572 

w. Black 313 

Hendry v. Key 664 

V. Whidden 594 

Henkleman v. Peterson 325 

Henley v. Houghtaling 264 

Henn v. Walsh 789 

Henneke v. Cooke 607 

Hennessy v. Bacon .......; 322, 752 

V. Woolworth. 600 

Henry's Case. , 256 

Henry v. Clark. . . ; ' 260 

V. Deitrich 210, 735 

' V. Hammond 113 ' 

tJ. Henry 325, 547 

V. Hodge - 654 

W.Koch ...634, 684 

V. Mayer 18 

V. Raiman 407 

Henschke v. Moore 385 

Hensinger v. Dyer 397 

Henty ii..Wrey '438 

Hepburn v. Auld 624, 627, 629 

V. Dunlop 613, 615 

V. Lordan 638, 705 

V. McDowell 491 

Heppenstall v. Leng 853 

Hepworth v. Henshall 698 

Herbert v. Herbert 644 

W.Wren 501, 774 

Hercules Co. v. Newton 723 

Hercy v. Birch 786 

Herd v. Catron 383 



Herdan v. Hanson 350 

Hereuw. Her'eu 318 

Herold v. Herold China Co 674 

kerr's Estate. 243 

Herr v.. Barber 536 

• V. Payson 407 

Herring v. Wilton 63, 704 

Herring-HaU Co. v. HaU's S£ife 

Co 722 

Herrod v. Fauntleroy 344 

Herron v. Herron 410 

Hertzler v. Stevens 326 

Hervey v. Smith 634, 636, 638 

Herzberg v. Irwin 613 

Hess's Estate 242, 541 

Hess V. Bowen 600 

V. McCardell 352 

w. Vinton Colliery Co 589 

Hessin v. Manhattan 671 

Hetland v. Bilstad 350 

Hetfield v. Willey. 605 

Hetherington v. Palmer 257 

Hetrich v. Smith 407 

Hetrick's Appeal 396 

Hetterman v. Powers 726 . 

Heuberger, In re 507 

Heuser v. Harris ^ 213 

Heusner v. Baugher ' 721 

Hewes v. Dehon • 538 

Hewey v. Fonfe 287 

Hewins v. Baker 292 

Hewitt's Appeal -669 

Hewitt V. Dean 311 

V. Hayes 161, 162 

V. Loosemore 458 

V. Powers 323 

Heyder v. Excelsior B.; & L. 

Assoc .- 77 

Heyer v. Sullivan 76 

Heyman v. European Central 

Ry. Co r 444 

Heyward v. Cuthbert 776 

Hibemia Society v. Ordway .... 71 

Hickman ti. Berens. .' 323 

V. McCurdy 533 , 

V. Stout'. 758 

Hickman's Estate 75 

Hicks V. Am. Nat. Gas Co.. 680, 701 



TABLE OF CASES. 
[The references are to the pages.] 



XCl 



Hicks V. Compton. . 687 

V. Fordham 859 

V, Hastings 781 

V. Hicks ..260 

V. Michael 727 

V. Sage-, . . . . , 149 

V. Steel -. 285 

Hidden v. Jordan 148 

Hieatt v. Settle 653 

Hiester w.Hiester , . . . 156 

Hiett w. ShuU 750 

Higdon^. Bell 542 

' Higginbotham v. Boggs 149 

Higgins w. Higgins 436 

V. Lansingh, Adm'r. . . . 292 

V. Manson 579 

V. McGill 644 

Co. V. Higgins Co. . .... 725 

High V. Hoffman 255 

V. Worley 510 

Highberger v. Stiffler 394, 405 

Highland Co. v. Steele, 105 

Highlands v. Fire Ins. Co.. .\ . . . 486 

Highwayman (The) 71 

Higipbotham's Estate 540 

Hilbert v. Lang 528 

Hillw. Barclay 311 

V. Beach 795 

V. Bishop of Exeter 431 

V. Bowie ' 679 

V. Bowman 672 

!). Bush 328 

V. Campbell 846 

V. Epley. 481, 484, 493 

B.Hall 406 

w. HiU , 135, 248 

V. Lackey 306 

». McLaurin 394 

V. MoRae Ill 

-V. Miller., '. . . 395- 

' V. Neely ..." 491 

V. Pollard. ^. 150 

V. Rich Hill Mining Co 607 

V. Treasurer, etc 498 

. V. True 159 

V. Turner '. . .' 666 

a Wand 482 

«. Winne 259 



Hillary t). Waller 614 

Hiller v. Jones /. 421 

HilUard v. Parker 210 

Hills i>. Croll 730 

V. Miller 728 

Hillsboro Co. v. Knotts 653 

Hillyard v. Miller 231, 232 

Hilt V. Simpson 369 

Hilton V. Eokersley 386 

W.Sloan. . . 489 

Himrod w. Oilman 297 

Hinchinbroke (Lord) v. Sejmiour 437 
Hinchman v. Paterson Horse R. 

Co 707 

Hinckley v. Thatcher 216 

Hihdman v. O'Connor 416 

Hindson v. Weatherill. .... .400^07 

Hindustan (Bank of), Inre. . . . 571 

Hine v. Handy. . I . . 643 

V. Morse , 835 

Hines v. X3opeland. 622 

«. Roller 610 

V. Royce : -. 365 

V. Thorn 344 

Hmkle v. Hinkle 620 

V. Wanzer 278 

Hinsdill v. Murray. 548 

Hinshaw v. Russell. 151, 157 

Hintz V. Hintz 397 

Hipp V. Babin 61 

, Hipwell V. Surety Co 288 

Hires v. Consumers' Co 721 

Hirsch v. Jonas 720 

Hirschberg v. Flusser 685 

Hirsh V. Auer 120 

Hirst's Appeal 566 

Hirst's Estate 566 

Hissam », Parrish 601 

Hitchcock V. Board of Missions . 216 

V. Harrington 258 

V. Hustace. 413 

V. Skinner.-.-.. .768, 771 

Hitchcox V. Morrison 767 

Kitchen a. Birks. .864, 865 

Hitchens v. Pettingill 744 

,Hitchins v. Congreve 413 

' Hitchman Coal Co. v. Mitchell. . 692 

Hitchman v. Stewart 533 



XCll 



TABLE OF CASES. 



[The references are to the pages.] 



Hitner's Appeal 206 

Hitt «. Holliday 256 

Hitz V. Jenks 868 

Hlawaty v. Zoeck. 234 

Hoadley v. Seward. 704 

Hoagland v. Green 546, ,547 

V. Latourette . . '. 692 

V. Supreme Council. . . 304 

Hoar V. Hoar 152 

Hoare v. Bremridge 341, 648 

V. Osborne 212 

Hobbs V. Hurley 531 

Hoblyn v. Hoblyn 405 

Hoboken Bank v. Schwoon 124 

Hobson, In re 508, 556 

HoBson V. Sherwood 769 

V. Trevor 278 

Hockaday v. Jones T 648 

Hocker'w. Gentry. . SIO 

Hockley v. Bantock . 578 

Hoddel V. Pugh ^ 591 

Hoddy v: Hoard 742 

Hodgdon V. Peet 532 

Hodge V. Att.-Geri 90 

Hodges' Estate, Re 242 

Hodges V. Buell 314 

«. Christmas 650 

D.Smith 664 

V. Vemer 149 

Hodgkins v. Ashby 506 

Hodgson V. Farrell 371 

V. Macy 158 

V. Shaw 544 

». Williamson 186, 337 

Hodson V. Coppard .- . . 731 

w. Heuland 621 

W.Walker 690 

Hoerr v. Hoerr 771 

Hoffen^s JEstate, In re 225 

Hoff's Appeal 666 

Hoffman, In re 204 

, Hoffman v. Beltzhoover 110 

' W.Brooks 387 

V. Cumberland Coal 

' ' Co. (The) 415 

V. Harrington 255 

V, Johnson 537 

V, tivingston 641 



Hoffman v. Toole City Co 60 

-v. Woods T 860 

Brewing Co. (Jacob) v. 

McEllegott 64 

Hoffner's Estate 59 

Hogan V: Jaques 167 

w.-McMahon 541 

V. Peterson 483 

W.Scott 59 

V. Strayhorn 167 

V. SuUivan. 133 

w. Utter 255 

W.Walsh 787 

Hodgen w. Guttery 256 

Hoge w. Hoge 168, 176, 341 

Hoggart V. Cutts 663 

Hoggatt w. Wade. . . T 574 

Hoghton w. ^[oghton 398, 404 

Hogsett V. Ellis 258 

r; Thompson.. . .27, 672, 864 

Hogue w. Curtis 654 

Hohlw. Modell 703 

Hoigges w. Harry .14, 640 

Hokanson w. Gunderson 471 ' 

-Hoke w. Davis 762 

Holbrook's Estate 382 

Holbrook w. Connor 352 

w. Nesbitt 720 

Holdane w. Cold Spring 492 

Holden w. Butler 463 

w. City of Alton 670 

w. McMakin.. .789, 790, 865 

w. Pike 539 

Holder v. Nunnelly 154 

Holderstaffe w. Saunders 667 

Hole V. Barlow 698 

W.Thomas 681, 683 

Holeproof Co. v. Wallach. ..... 720 

Holgate w. Eaton 605 

Holladay w. Hodge 806 

w. Rich. . 457 

w. WiUis 265 

Holland, In re 423 

Holland w. Alcock 211, 217, 228 

».-■ Anderson 630 

V. Cruft 510 

w. Hensley 123, 602 

w. Holland .,,,,,,.,,, 42§ 



TABLE OF CASES. 
[The. references are to the pages.] 



XCIU 



Holland v. Mayor of Baltimore . 860 

V. Mining Co 866 

Hollander v. Central Metal Co. . 591 

HoUenbaok's Appeal 744 

Hollfday v. Hively. 188 

». Holgate 583 

V. Overton 121 

HolUngshead ti. Hollingshead . ., . 204 

Hollingsworth v. Floyd 536 

V. Stone .322 

Hollins, Inre 291 

HoUins V. Brierfield Co 810 

Hollia V. Bland 625 

V. Hayes 153 

t). Hollis 341 

Holliston V. Emston 385, 732 

Holloway v. Headington 131 

V. Holloway 722 

». Radcliffe 525 

Hollowell «. Ins. Co 313 

I). Saterfield 169 

V. Schraden 764 

Hollowell- Savings Inst. v. Tit- 
combe 124 

Holly V. Bank 807, 808 

Holm V. Windsor. 707 

Holman v. Auto Co 265 

V. Laxmdry Co .- 690 

V. Loynes 406 

Holmes's Appeal 606 

Holmes v. Cameron 326 

■ V. Culber 406 

V. Deppert 464 

V. Dowie 175 

«. Bring. 240 

V. Fulton '.......: 766 

V. Gitman 161 

V. Holmes < 764 

■ w. Holmes Mfg. Co 721 

V. Holt '. 757 

' V. Lead Co ., 464 

I V. Matin 359 

V. Penney 425 

V. Penny. . 420 

W.Powell 462 

V. Remsen 648 

V. Stix .' 793 

W.Walter 102 



Holridge v. Gillespie 260 

Hohoyd v. Marshall ■. .279, 280, 

282, 283, 580 
Holsman v. Boiling Spring Co . . 700 

Holt ». Couch 771 

V. Sav. Bank 548 

V. Telephone .Co 481 

Homan v. Stewart 608 

Home V. Keene 498, 501 506 

Home Bank v. Stewart. 488 

Home for Children v. Rogers . . . 602 
Home for Friendless v. Trader's 

Co 555 

Home for Incurables v. Noble . . 333 

Hopae Ins. Co. v. Howell 653 

Home Inv. Co. v. Clarson. ..... 5^ 

Home Savings, etc., Ass'n v. 

Burton .^. . . 272 

Home Scale Co. v. Wyckoff 723 

Homer w.-Homer 148 

Homfray t). Fotliergill 786 

Homoeopathic M^ut. Life Ins. Co. 

V. Marshall r . 184 

Honore v. Hutohings /. . 150 

Honywood v. Forster : . . . . 505 

Hood V. Att.-Gen , 213 

V. Dorer.. . .^.. .209, 216, 225 

V. McGehee..' 598 

V. OgIa.nder 136, 141 

Hood-Barrsu Cathcart 192 

V. Heriot 192 

Hopker v. Montague 105 

»■ V. Pynchon 599 

L. SteelCo 351 

Hooley v. Hatton 823, 824 

Hoon V. Hoon 156 

Hooper, Ex parte 578 

Hooper v. Feigner 97 

4). Trust Co 572 

Hoopes V. Dundas ' 382 

' w. Ebel ' 68 

Hoops V. Fitzgerald . 327, 329 

Hoover v. Epler , . . . . 549 

V. Hoover 564, 819 

«. Reilly 318 

V. Strahm 369 

Hope ». Carnegie 666 

V. Hayley 279 



XCIV 



TABLE OF CASES. 



[The references are to the pages.] 



Hope uTLawrence 484 

Hopkins v. Beebe 291, 570 

V. Canal Proprietors. . . 862 

V. Crossley 225 

V. Garrard 470 

w.Glunt 137 

V. Grimshaw 166, 231 

V. Hopkins 95 

D.Kent "97 

i). McLaren 471 

V. Washington County. 287 
Hopkins Amusement Co. v. Chas. 

Frohman 720 

Hopkins Mfg. Co. v. Ketterer. . . 543 

Hopkinson v. Burghley., 716 

V. Forster 291 

». Rolt 271 

Hopkirk v. Randolph. , 419, 423 

Hopper V. Hoofjer 589, 599 

V. McWhorter 485 

Hoppiss V. Eskridge 288 

Hopwood V. McCausland 319 

Horbach v. Gray^ 326 

Horberry v., Harding 110 

Horgan v. Russell 591 

Horn V. Cole 480, 482, 492 

V. Horn 807 

V. Keteltas 747 

Home V. Lyeth 105 

Horner's Ex'rs v. McGaughy. . . 822 

Horner v. Woodland 610 

Hbrton v. Amason 150 

V. Bamford 420 

V. Lee 352 

V. Sledge 102 

HorwoodxB. West 138 

Hosking v. Smith 269 

Hoskins n. Cauble 640 

ti. Ins. Co.. .; 745 

Hosmer v. Republic Co 691 

Hospes V. Northw. Mfg., etc., 

Co.... 810 

Hosp. Trust Co . i>. Olney 211 

Hossack V. Graham 291 

Host V. Anjou 572 

Hostetter v. Merrick 625 

V. Vowinkle 718 

Hotchkiss V. Keck 677 



Hotchkiss V. Middlekauf 79 

Hotel Co. V. Hagaman .791, 859 

Hotz's Estate.. 382 

Houohens v. Houchens 725 

Hough V. De Forest , 274 

Hough p. Richardson.. 360, 365, 460 

Houlton V. Dunn 392 

Hoansell v. Miller 685 

Hourmelin v. Sheldon 516 

Hoursey v. Lane 424 

House V. Falconer. 769 

Houseman v. Building Associa- 
tion (The) 461 

V. Grossman 428, 806 

Houser v. Lament 264 

Housmann v. Grossman. ....... 806 

Houston's Appeal 545, 556 

Houston V. Curran 311 

». Embry 182 

V. Farris 117 

V. Faul ' 325 

w. Jefferson College. . . . 737 

«. R. R.Co 318 

V. Townsend 621 

Hout V. Hout 331 

w. Hellman 71, 607 

Hovey v, Bradbury 67 

How V. Weldon 376 

Howard v. American Peace So- 
ciety 213,- 225 

V. Carpenter 329 

». Delgado&Co 569 

V. Digby 197 

t). Edgell. . : 603 

V. Harris 256, 259 

». Howard.... 129, 153, 371 

V. Hudson 493 

V. Linnhaven Orchard 

Co.^ 572 

V. Lovett 738 

V. Manufacturing Co. . . 619 

V. Moffatt 198 

«. R. Co..- 688 

V. Robinson. 255 

V. Turner 442 

Howard Co. v. Garrigus 366 

Howcott V. Smart 74 669 

Howe Machine Co. v. Miner 59 



TABLE OF CASES. 
[The references are to the pages.] 



XCV 



Howe, Matter of '579 

Howe V. Dunlap ". . 61 

V. Howe 394, 396 

V. Johnson 491 

V. Sheppard 529 

V. Watson 609 

HowelJ V. Ashmore 847 

V. HoweU 157, 393, 795 

V. Mellon 524 

«. Wyatt. ;..., 365 

Howey v. Goings ^ 764 

Howison V. Baird 120 

V. Bartlett 610 

Howlin V. Castro 749 

Howser v. Cruikshank 554 

' Hoxie V. Carr. . . . .- 148, 791 

V. Home Ins. Co 484, 486 

Hoye V. Kalashian .'.... 456 

Hoyt V. Gouge 663 

w. Hoyt 723 

V. Latham ■. 174 

V. McLaughlin 691 

V. Story 290 

V. Tuxbury. . .- .605, 613 

Hubbard !>. Goodwin. .:...'. 109, 152 

V. Harrison 259 

V. Hubbard 542 

V. Jasinski 650 

W.Long 463 

V. Martin. 323 

V. Oliver 360 

V. Shaw , 268 

». Tod.. 73 

p. Worcester Art Mu- 
seum 216 

Hubbell V. Meigs 349 

V. Moulson .-'268 

V. Von Sohcening 605 

Hubbert v. Fagan 327 

Hubble V. Perrin 795 

Hub Co. f. Cohen 718 

Huber Mfg. Co, v. Claudel 742 

Huber's Appeal. . . . < 99 

Huckenstine's Appeal 703, 704 

Huddleston v. Henderson. . 400, 408 

Hudelson v. Wilson 573 

Hudkins v. Crim 265 

V. Ward 554 



Hudnal v. Wilder 432 

Hudson V. Barrett 787 

V. Cook 515 

V. Hawkins. : . . 160 

V. Hudson 375 

V. Ins. Co 322 

V. Max Meadows L. & 

L Co 614 

i). Wheeler 345 

V. White '. 153 

Hudson Co. v. Smith 459 

Huff V. Shepard 609 

Jfftiger V. Cunningham 787 

w. Huger., 243, 835 

Huggin's Estate -, 127 

Hughes, Ex parte 415 

Hughes Hallett v. Indian Mam- 
moth Gold Mines Co ,-854 

Hughes V. Boyd. .' 383 

^ V. Directors of Metr. By. 

Co 313 

». Fitzgerald 137 

V. Keaj'ney . . r 574 

V. Linn County 673 

V. Littlefield 545 

V. Morris 621 

V. Peters 190 

V. Sheaff 264 

, V. Statham 286, 720 

— V. Thomas 546 

, V. United States 324, 463, 750 

V. White 159 

Hughitt V, Hayes 530 

Huguenin iTBaseley. .129, 394, 397, 

, 398, 410 

Huiskamp v. Moline Wagon Co. 796 

Hukew. Htike '. 831 

Hukill V. Myers 313 

w. Yoder 429 

Hulen V. Earel. 386 

Hulings w.' Hulings Lumber Co. . 291 

HuU W.Hull 778 

V. Loan Co 112 

V. Sturdivant 599 

Hulley V. Security, etc., Co 702 

Hulme V. Tenant. . 179, 185, 189, 190, 

192, 197 

Hulse V. Bonsack Mach, Co 384 



XtJVl 



TABLE OF CASES. 
[The references are to the pages.] 



Humane Fire Co.'s Appeal 217 

Humbertson v. Humbertson. . . . 107 

Hummel's Appeal 435 

Humphreys v. Atlantic Mill Co. . 61 

^ < V. Butler 161 

v, Mattoon 345 

V. Walsh 67 

Humphries v. The Little Sisters . 215 

Hundley v. Mount 468 

Hungerford v. Himgerford 205 

Hunt's Appeal 513, 514 

Hunt V. Barker 365 

V. Bass 237 

V. Blanton 444 

V. Danforth , 24 

ti. Fowler 225 

V. Freeman 650 

V. Hamilton 340 

V. Hunt 205, 622 

V. Luck 463 

V. Moore 360, 394 

V. Mortimer 290 

V. Riverside Club 387 

». Rousmanier's Admrs. . . 292, 
304, 317, 318, 320, 321 

V. Rowland 71 

Hunter's Appeal 672 

Hunter, In re 213 

Hunter v. Att.-Gen ., 227 

V. Bank .*. . . 467 

V. Briggs 116 

V. Bumgardner 429 

V. Coe 74 

v. Hatch 263 

V. Hubbard 248 

V. Hunter 546 

V. McLaughlin 351 

v. Stembridge 139 

Hunting v. Damon. : 613 

Huntington v. Jones 806, 809 

Huntington, etc., Devel. Co. v. 

Thomberg 620 

Huntley v. Kingman 423 

Huntly V. Huntly ; . . 126 

Huntress v. Hanley . . . . ^ 423 

Huoncker v. Merkey 263 

Hurdw. Hall 324 

Hurlbert v. Kellogg Co 350 



Hurlburt v. Arthur r. 488 

Hurlbutt V. Butenop .- 471 

Hurley >. Ashhridge 289 

w! Levee Commissioners. 677 
Hurricane Telephone Co. v. 

Mohler. ...843, 844 

Hursen v- Hursen 350 

Hurst's Lessee v. McNeil 94 

Hurst V. Beaeh 824 

V. Brennen 57, 170 

Hurt!). Hurt 864 

Husbapd v. Aldrich , 765 

V. EpUng 190 

Huselton & Co. v, Durie 807 

Huson V. Wallace 169 

Huss V. Morris. . . r 325, 331 

Husted's Appeal ., 484 

Huston'a Appeal 545 

Huston V. Harrington 610 

Hutcheson v. McNutt 608 

Hutchins v. Carleton 274 

». Heywood...89, 102, 110 

V. Hope. ...' 764 

D.King 258 

t). Lee 115 

V. McCauley 535 

^ V. Van Vechten. ..... 117, 

Hutchinson v. Bambas 328 

V. Bank 160 

V. Ford 283 

V. Fuller 318 

V. Green 667 

V. Hutchinson 169 

V. Maxwell Ill 

V. Roberts 534 

«. TindaU 394 

Hutchinson & Tenant, In re, 

136 

Hutchison v. York Co 689 

Hutton V. Duey.'. 206, 207 

Hutzler v. Phillips. 578, 579 

Hydfill V. Buffalo Marine Co. 80, 646' 

Hyde v. Baker. 342 

V. Tanner 747 

Hyer v. Little 393 

V. Richmond Trac. Co. 356, 786 

Hyland v. Roe 160 

Hylton V. Hylton 403 



TABLE OP CASES. 
[The references are to the pages.] 



XCVll 



Hyman v. Hauff 272 

W.Kelly 254 

Hyndman v. Hyndman. ~171 

Hynds v. Hynds 157 



Ibbitson, In re 513 

Igb Co. v. Wood 701 

Iddings V. Iddings . . . . r 441 

Idew. Brown 599 

Iglehart v. Armiger 673, 575 

V. Gibson 605 

lies V. Heidenreich 662, 663 

Ilgenf ritz v. Ugenfritz 410 

Ilingworth v. Rowe. . .- 663 

UUnoisCent. li. R. Co. v. 

Greece 668 

Illinois Com. Co. ». Cleveland ^ 

Tel. Co .' 715 

Illinois Steel Co. v. Schroeder. . . 657 
Illinois Trust & Savings Bank v. 

Doud 562 

Imlay v. Huntington 190, 204 

V. Norwich, etc., R. Co.. . 711 

Import Co. V. Bachman 379 

Improved Bldg. Ass'n v. Larkin. . 574 
Improvement Co. t). Rhoades. . . 2 

Imp. Co. V. Tower's Ex 71" 

Impl. Co. V. Rogers 744 

Inbusoh V. Farwell . r 795 

Inchbald v. Barrington. . 704 

Inchiquin v. French 120 

Incorp. Town of Lauers v. North- 
ern Iowa Gas Co. ._. ._ 600 

Inderwick v. Inderwiok 120 

Indian Land Co. v. Shoenfelt . . . 686 

Indiana Co. v. Kirk 77 

Indiana Oil Co. v. McCrory. . . . 314 
Industrial Co. v. Benson. ....... 572 

Inge V. Inge 67 

Ingersoll's Appeal 99 

Ingersoll v. Coram 569 

Inglis V. Sailors' Snug Harbor 

209, 220 

Ingram v. Fraley 142 

V. Kirkpatrick 130 

Mow V. Christy 408, 443 



Innerarity v. Bank 461 

Innis V. Templeton 494 

Institute Assn. v. Edwards 328 

Insurance Co. v. Caldwell ....'.. 163 

V. Connelly 71 

W.Cook 274 

V. Craig 677 

V. Day 286, 287 

». Ins. Co ' 458 

V. Railroad Co 641 

V. Steel Corp 639 

«. TriUing 744 

«. Trust Co 377 

W.Waller 117 

Insurance Co: of Pennsylvania 

Phoenix Ins. Co 292 " 

International Com. Y. W. C; A. 

w. Y. W. C. A 720 

Tntemational, etc., Ass'n w. Wat- 
son .' 461 

International News Service v. 

Associated Press 64, 148, 712, 

713, 720 
International Silver Co. v. Rogers 

722, 723 
International Trust Co. v. Town- 
send Brick & Con. Co.. 561 

lilt. Trust Co. V. United Coal Co. 559 
Interurban Co. v. United States. 647 

Investment Co. w. Flick 358 

V. Vernon. 625 

Iowa Loan & Trust Co. v. Dist. 

Court. 851 

Ipswich (Bank of) v. Brock 548 

Ireland (Bank of) v. Perry. . . '. . 670 

Irick V. Black 62, 642^ 551 

Irish-Amer. Bank v. Ludlum. . . . 496 

Irhham w. Child . ,. 265 

Iron City Laundry Co. w. Leyton 608 

Iron Co. V. Kohn. .^ 288, 294 

Ironmongers' Co. v. Att.-Gen. . . 224 

Irrigation Co. w. Garland 285 

Irvine's Estate 248 

Irvine v. Campbell r.,. . 572 

w. Young. . 763 ' 

Irving w. Hughes 665 

w. Thomas 364 

IrTCin's Appeal 242, 247 



XCVlll 



TABLE OF CASES., 
[The references are to the pages.] 



Irwin !). Harris 169 

V. Irwin '. . 341 

V. Ivers. . . .' 148 

v' Monongahela Coke Co. 172 

V. Shoemaker 641, 688 

V. Tabb 271 

Isaacs, In re 523 

laenberg v. Huntingdon Millwork 

Co... 32 

Isha^ V. Bennington Iron Co. . . 468 

Isler V. Baker 789 

Itzkovitch V. Whitaker 738 

Iverson v. Dieino . ' 691 

». Willbum 328 

Ives V. Armstrong 628 

». Ashley 173, 174 

V. Edison 641 

V. North Canaan. 484 

Ivey V. Griffin 641 

Ivory i>. Bums 117, 120, 121 



3.V.S 673 

Jack V. National Bank 295 

Jackman v. Mitchell 430 

». Ringland. . . . ..148, 153 

Jackson v. Bank 420 

V. Burgot , 448 

». Gary 103 

V. Cleveland 167 

w. Feller 156 

V. Hamm " 293 

e. Hill 198 

I). Jackson 150, 154, 156, 

792 

V. Leek ? 469 

e. Lodge 258 

». Lynch 260, 268 

«;. Matsdorf 158 

V. Meyers 103 

V. Morse." 151 

V. Petrie 869, 870 

D.Phillips.... 208, 209,212, 

214, 217, 218, 219, 220, 

221, 222, 223, 225, 226, 264 

V. Pierce 98 

«. Smith. 242 



Jackson v. Stevenson 630 

V. Thomson 171 

V. Torrence 4§5 

V. Town 424 

». Waldron 276 

V. Walsh", 414 

V. Warren 471 

: 6. Woodruff 648 

Jackson Square Ass'n v. Bart- 

• lett Ill 

Jacksonville Natl. Bank v. Bees- 
ley. .. .. 148 

Jacob.!). Beecham , . . . 721 

Jacobs V. Ainyatt 182- 

V. Graphite Co 574 

t). Siff 430 

V. Webster. 545 

-Jacobson d. Harvester Co 281 

'' V. Roman 741 

Jacoway v. Hall 242 

Jaffei). Weld 163 

Jager v. VoUinger 77 

James, Matter of ' 131, 133 

James v. Gibbs . . . '. 198 

W.Kerr 262, 372 

V. Mayrant 191 

V. Morgan 371 

V. Rice 578 

V. Scott 856 

V. Smith 148 

Jameson v. Hayward 772 

Jamison v. Adler. 558 

V. Brady 180, 182 

V. Culligan.^. 394 

V. Glascock '. . 243 

Janes v. FaUc 126 

Janneyi). Minn. Indus. Expos. . . 409 

Jansen v. Godair 226 

January v. Martin 371 

Jaques v. Methodist Church 

(The) 189 

V. Millar 631 

V. Weeks 260, 464 

Jarboe v. Severin ; 568 

Jardent). Phil., W. & B. R. 

Co ; . . 689 

Jarrah Timber, etc., Corp. v. 
Samuel 260 



TABLfi^ OF CASES. 
'' [The references are to the pages.] 



XCIX 



Jarrold v. Houlston 713 

Jarvis v. Binkley 278 

V. Brooks 799 

V. Chandler 666 

V. Dutoher 579 

V. Martin 647 

V. Prentice 182 

Jason V. Eyres 259 

Jasper Land Co. v. .Wallis 865 

- Javierre v. Central Altagracia. . . 59 

Jeannot, In re 205 

^Jefferson i>. Bishop of Durham.. 679 

Jeffreys v.. Jeffreys 131, 602 

Jeffries v. Evans 296, 530 

Jeiicks t>. Kearney 605 

Jenison v. Graves 154 

Jenkens v. Jackson 698 

Jenkins v. Bradley 320 

Ji. Davis. 325 

V. McConico ........... 190 

w. Pye 373, 404 

V. Renfrow. 461 

V. Rhodes 436 

V. Walter. 239 

V. Wilkinson 292 

Jenks V. Fritz."..- 326 

V. Horton 808 

jenkyn v. Vaughan 424 

Jenner v. Jenner. 405 

V. Morris 203 

Jenning v. Miller 621 

Jennings v. Augir 579 

D.Baddeley 789 

V. Broughtbn.. 364 

V. Demmon 265 

V. Jennings.-. 200 

W.Moore 331 

B.Smith 340 

, D.Ward 262 

W.Whitney 293 

Jensen v. Wilslef 574 

Jermyn v. Moffitt .288, 291 

Jernegan v. Osborn 283 

Jerome v. Carbonate Nat. Bank. 463 

W.Ross 686, 687 

Jersey (Earl of) v. Dock Co 575 

Jervis v. Bruton 389, 390 

.W.Smith.;.... 630. 751 



Jervoise v. Duke of Northumber- 
land 104, 105 

Jessop V. Ivory.' 334 

Jesus Col. (Case of ) 216 

Jesus Col. V. Bloom 57 

Jett V. Crittendon '. . . . . 493 

Jewel Tea Co. v. Novak 386 

Jewelers' Go. v. Keystone Co. . . 712 

Jewell V. Trilby Mines Co 67 

Jewett V. Black 628 

V. Boardman 860 

Joffe Bros. v. Fetnandez & Go . . 866 

Johannessen v. Munroe 497 

Johanssop v. Stephanspn 350 

John V. McNeal 312 

John Hancock Ins. Co. v. Dick. . 338 

John Morris, In re 571 

John T. Dyer Go. v. Schuylkill 

Stone Co.. 722 

Johnes v. Lockhart 182 

Johns V. Carroll 154 

V. James 129 

.;. Norris 71, 627 

V. Reardon 556 

Johnson's Ex'rs !). Ketchum 763 

Johnson, In re . .209, 235 

Johnson v. Adams. .' 661 

W.Bali 121 

w. Bank 266 

w. Black 671 

V. Blackman. . . .- 662 

w. Bragge 623 

. w. Breeding 278 

V. Brooks ,. . . 596 

w. Canfield 810 

w. Cantrell 637 

' w. Carter. 752 

V. Gawthom 576 

w. Chicago Ry. Co 395 

D. Christian 644 

w. Glarkson 121, 165 

,w. Colley '.;... 132 

w. Conger, 610 

V. Cook. 308 

w. Comett 259 

V. Cummins 187 

w. Gushing 329 

w. De Pauw University. 214 



TABLE OP CASES, 
[The references are to the pages.] 



Johnson v. Dougherty 159 

ti. Duer 668 

V. Fesemeyer 407 

W.Gallagher 186, 187 

V. Grp,y 260 

V. Hayward 76, 148 

V. Hubbell 622 

V. Huber .- 673 

V. Hughes 688 

V. Hunt 380 

V. Johnson. . .156, 222, 225, 
227, 444, 532, 626, 680 

V. Jones 339 

V. Knappe 348 

'V. Lee. ..!...,, ,. 95 

V. Mayne '. 226 

V. Medliccitt 396 

V. Mutual Life Ins. Co. 495 

IV. Newton : 239 

V. Railroad Co 59, 604 

V. Richardson 272 

V. Rickett. . . .- 599 

V. Riseberg 622 

V. Robinson. 254 

V. Seabury 720, 721 

V. Shrewsbury & Bir- 
mingham R. Co. 611; 733 

V. Smith 126 

V. Somerville 443 

V. Stear 583 

V. Tennessee Co 533 

V. Vickers 287 

V. Watson ,.. 396 

V. Wells-Fargo Co 668 

V. Wild 53S 

u. Wyatt 702, 753 

Johnson Co. v. Bryson 288, 289 

Johnston v. Bunn 57 

V. Coney 149 

«. Clancy 621, 754 

V. Laflin 460 

V. Mueller . 534 

V. Price 63, 760 

V. Renton 597 

V. Rowlands 136 

V. Standard Mining Co. 443 

V. Zarie's Trustees. ... Ill 

Johnstone v. Beattie 830 



Joines v. Combs 750 

Joliffe V. Baker .347, 360 

Jolly V. Brady 731 

Jones's Appeal 188, 246, 248 

Jones's Estate 169, 556 

Jones V. Alab. & Vick. R. R. Co . 395 

■ V. Allert . .' 574 

V. Babcock •. 285 

V, Bamf ord 460 

V. Beach 747, 748 

y. Bolles .* 338 

V. Boston Mill Corp 600 

V. Bright 691 

V. Bryant 249 

V. Bullock 760 

V. Byland 126 

V. Byrne 600 

W.Caldwell 525 

V. Caraway 407 

V. Chanute 707 

W.Clifford 321, 60S 

V. Clifton , . . 427 

w. Club 456 

V. Creveling's Ex'rs 825 

V. Croucher 432 

V. Degge 372 

w. Fox , 60 

V. Foxall 242 

, V. Gilham..^ 664 

V. Green 808 

V. Gregory 340 

w. Hardesty 296 

V. Harris 655 

». Hollister 572 

V. Hughes '667 

w. Id 349 

V. Jenkins 258, 259 

W.Jones 168, 265,436, 

500, 539 

w. Light' 425 

V. Lloyd 789 

V. Lock 126 

w. Mackenzie 594 

V. MoKee., 341 

w. Meredith 256 

w. Morgan 104 

w. Myrick 539 

w. Neale 793 



TABLE OF CASES. 
[The references are to the pages.] 



Jones V. Newhall. . .62y 63, 611, 621 

V. Nixon 861 

V. Noble ;..-.. 608 

V. North 731 

V. Noy 789 

V. Parker 610 

V. Powell: ,. 774 

V. Reese '. . . . 110 

V. Renshaw 225 

». Smith. .343, 465, 580 

V. Stewart. 358 

». TapUng 702 

I). Thompson 394 

V. Van Doren. ...168, 449, 776 

V. Van Winkle. 694 

V. Watford 217, 230 

V. Watkins 323 

V. Weir 865 

». WilUams 219, 471 

B.ZoUicoffer 453 

Jope ». Morshead /.^. . 767 

Joplin V. NunneUy 360 

Jordan v. Abney j 599 

V. Cooper 3, 75 

V. Deaton 610 

». Elliott. ...' 396 

V. Sawkins. . . . . v 746 

V. Sayre 259 

V. Stevens 321 

«. Tel. Ck) 655 

». Trustees 225 

^.■Walker 364 

Jorden V. Money ». . 356 

Jordeson w. Sutton, etc., Gas 

Co , , 706 

Jordon v. Sayre 258 

Jorgensen v. Jorgensen 619 

Joselove v. Bohrman 673 

Joseph V. Dairy Co., 700 

■ Joseph -u. Macowsky ; 70 

Josephthal v. Gold 789 

Josiah Schletz Co v. Houston . . . 723 

JosljTi V. Wymm 272 

Jossey V. Ga. South. Ry. Co. . . . 328 

Jourdan v. Dean. 180 

Joy «. St. Louis. . . . . ' 612 

Joyce V. De Moleyns 454 

•Joynes v. Statham. 600 



Jubber v. Jubber^ , 

Judd V. Harrington 

Judson V. Corcoran. 298, 

V. ZurhorSt 

Junction Co. v. Sharp 

Jungdorf v. Little Rice. . . . " 

Junker v. Rush 

Justice V. Wynne 

Jutte V. Hutchinson 

Juvenal v. Jackson 

Juzan V. Toulmin 328, 



a 



120 
387 
455 
739 
698 
481 
544 
293 
442 
458 
348 



Kabler v. Spencer. . . / 62 

Kahau v. Booth 264 

Kahn v. Peter 489 

V. Walton 71, 379 

Kalamazoo Trust Co. v. Merrill. 534 

Kallander v. Neidhold 644 

Kalmutz v. Ins. Co 486 

Kalteyeri). Wipff. .' 771 

Kamena v. Huelbig ,.•.,. 296 

Kane v. Bloodgood 83, 344 

V. Gott. 510 

V. Vanderburgh 679, 727 

■w. Va. Coal & Iron Co. . . . 860 

Kane Co. v. Herrington 494 

Kann V. Diamond Steel Co 720 

V. King 312 

Kannady v. McCarron 255 

Kansas City R. R. Co. v. King. . 669 
Kansas City Gas Co. v. Kansas 

City. 692 

Kansas City Ry. Co. v. Luigley. 657 
Kansas & Ark. Val. R. R. Co. v. 

Pitzhugh 647 

Kansas, etc., R. Co. v. Glen Jeaq, 

etc., R. Co , 688 

Kansas Valley Bank v. RoweU. . 272 

Kapiolani v. Atcherley 402 

Karasik v. Trust Co 545 

Karn & Hickson v. Roer Iron 

Co 560 

Karren v. Rainey. . , . . . 620 

Karrick v. Hannaman 786 

Kaspar v. Dawson. ............ 703 

Kauffman v. Kauffman 148, 149 



cu 



.TABLE OP CASES. 
[The references are to the pages.] 



K^uffman v. Kaufm^inn 118 

Kauffman's Appeal. . . : 590 

Katzing v. Wiegand .\ 149 

Kaufman Vi Cook 621 

Kaumagreph Co. v. Stampagraph 

Co., Inc 731 

Kavanaugh's Est ". 217 

Kawananakoa v. Puahi 57 . 

Kay«.Scates..95, 98, 100, 102, 860 

Keady v. White 423 

Kean v. Johnson 737 

Kearney v. Laird 671 

V. Macomb 500, 503 

». Taylor 358 

V. Vaaghan , . . . 835 

Keams v. Howley 639, 738 

V. Swope 460 

Kearny v. Jeffries 843 

Keates v. Lyon 451 

Keating v. McAdoo 182 

v: Orrie 482 

V. Smith 102 

Keatley v. United States Trust 

Co : 25 

Keator v. Brown 625 

Keck V. Bieber '. 309 

Keech v. Sandford 169 

Keefe v. Keefe ^ 699 

• Keeler v. Eastmant 680 

». Loan Co! 272 

V. Taylor : 386 

KeeUng v: Hoyt ^ 431 

Keen v. Coleman 494 

V. Hartmaa 494 

V. Jordan 304 

Keenan v. Handley ., . 855 

». The Missouri Ins. Co . 461 

Keene's Estate 99 

Keene v. Demelman 326, 327 

V. Gas Co -. 388 

t). Wheatley 709, 715 

Keep V. Miller 515 

Keepers v. Yocum 625 

Keeton v. Spradling 67 

Keffer v. Grayson 602 

Keil V. Wright. 685 

Keily v. Monck. . ; 382 

Keisselback v. Livingston. . . 441, 617 



Keister v. Myers 326 

Keith V. Brewster 328 

v.. Globe Ins. Co 325 

V. Horner 285, 579 

«. Scales." 224; 228 

V. Trapier 776 

V. Wheeler 146, 164, 156 

Kekaula v. Ehu 607 

Kekewieh v. Manning 127, 128 

Kelaher v. English 65 

Keller v. Ashford 548 

i). Auble 170 

». Harrison 68 

V. Lewis 314 

Kellett V. Sumner 128 

Kelley v. Devin 622 

V. Gill 656 

V. Stanbery 463 

a. York 603, 607 

KeUogg, In re 234, 666 

keUogg V. Larkin -. 389 

V. Moore ^. ....... . 67 

». School Dist 671 

V. Smith.... 466 

KeUogg Co. V. Quaker Oats Co. . 721 

KeUum,». Smith 264 

Kelly V. Bradford. .' 613 

tf. Galbraith 57 

w.' Jackson 849 

V. Karsner 121 

-.w. KeUy 150 

w. Lehigh, etc., Co 596 

»: McGuire 371 

V. Nichols 212, 219 

V. Wagner 487 

V. Ward 328 

Kelsey v. Crowther 605 

V. Distler '. . . . 611 

Kemble v. Kean 385, 730 

Kemmerer v. Kemmerer 214 

Kemmler v. McGovem 342 

Kemp V. Division. . 692 

V. Kemp 93 

V. London & B. Ry. . 689 

». Pryor 63 

V. Sober .729, 731 

Kemshall v. Stone . 754 

Kempson v. Ashbee 395 



TABLE OP CASES. 
[The references are to the pages.] 



cm 



Kempson v. Kempson '667 

Kemshalla. Stone 630, 754 

Kendall, Ex parte. .'. 556 

Kendall v. Almy 609 

V. Foulks 637 

V. Prey ' 597- 

\ V. Honey 776 

V. Mann 153, 154 

KendaUviUe Co. v. Davis & Ran- 
kin 850 

Kenistons v. Sceva 133 

Kennard v . George . . -. 334 

Kennedy v. Anderson 619 

V. Currie 394 

B.Daly. 456 

».,De Trafford. . . 170, .172, 
410 

t». Fury 90 

V. Green. 460-461 

- v. Hazelton 611 

V. Kennedy,.«405^ 751, 789 

, ■ V. MoCann 404 

V. McOloskey 149 

V. Strong 239 

«. Tiemay 288 

• P.Ware .131, 296, 602 

Kei^Jiedy Corp. v. Kennedy. 723, 733 

Kenneweg v. Schilansky 289 

Kenney v. Dodge 357 

V. Tucker 3/4 

». tdall...........l97, 201 

Kennicott ». Leavitt 608 

Kenny v. Gillet 720 

Kensington, Ex parte 578 

Kensington (Lord) v. Phillips. . . 610 

Kent V. Bailey 328 

w. Church of St. Michael. . 304 

' V. Dean 369-463 

V. Freehold Land and 

Briokmaking/Co 414 

V. Matthews. 550 

B.Riley 424 

, Kentucky Lumber Co. v. Montz 288 
Kentucky Warehouse jDo. v. 

Blanton 615 

Kenwood Co. v. Hancock Co 731 

Kenworthy v. Levi 238, 451 

Kenyoh v. Edmundspn 698 



Kenyon v. Farris 203 

V. Weissberg.- \ . . . 733 

'». Welty 318, 596 

Keokuk (City of) v. Love 534 

Keokuk Uy.'v. Donnell ).59, 61 

' Keough V. Meyers 264 

Keown «. Keown 116, 594 

Kepler w. Davis 242 

Keppel V. Lehigh C. & N. Co. . . 685 

Ker V. Wauchope 500 

Kerens v. Trust Co Ill 

Kerker v. Levy . .^. 424 

Kern v. Hotaling 325 

». HoweU 159 

Kerns v. Swope ■ ^. 468 

Kerr's Appeal 735 

Kerr v. Coloration of Preston. . 667 

V. Day 515, 589 

o. Gihnore. 264 

V. Nygren 593 

V. Steamboat Co. (The) ... 762 

V. Trego 735 

Kerrich v. Bransby 340 

Kershaw v. Thompson 640 

Kessler v. Herklotz . . .* •. . . 327 

Kestner v. Homeopathic Hospital 704 
Ketohaino'. Brazil Block Coal 

Co .■ : . . . 661 

Ketchum v. Duncan .'. 496 

Kettering t); Eastlack 599 

Kettlewell v. Bartsow 846 

». Watson. .449, 458,459, 
460 

Kevan's Appeal '..».. 498 

Kevans v. Joyce 373 

Key w. Griffin 507 

V. Hughes's Ex'rs -242 

Keys's Estate 292 

Keys V, Alligood 634 

B. Test.., 457, 463 

B. WilUams ^ 578 

^ Keyser v. Hage : 771 

«. MitoheU Ill, 113 

O.Rice 80 

Keystone Guard v. Beaman. . . . 737 

Keyzey's Case. ._. 538, 566 

Kibbe v. Dunn 258 

Kidd V. Horry 739 



CIV 



TABLE OF CASES. 
[The references are to the pages.] 



Kidder v. Barr 621 

Kidney v, Coudsmakier 507 

Kidwell V. Godfrey 103 

Kilbouf n v. Sunderland 59 

Kildare (Earl of) v. Eustace.. .78, 80 

Kile V. Fleming 190 

Kilgannon v. Jenkinson 860 

Kihlken v.. Kihlken 429 

Kilhoffer v. Zeis 792 

Killian v. Badgett 393 

!). Effingham 662 

Kilpatrick V. Kilpatriok 832 

V. Striaier 323 

Kilpin V. Kilpin 119, 121 

Kimball v. jEtna Ins. Co 357 

V. Farmers' Bank 77 

W.Kimball 204 

V. Ranney 175 

V. Reding 238 

«. Tooke 606 

Kimberley v. Fox 859 

». Jennings ^.385, 730 

Kimberly's Estate 211, 229 

Kimble v. Wotring 546 

Kimbrell v. Thomas 685 

Kimm v. Weippert 190, 191 

Kimmel v. Berresheim 399 

V. MoRight. ...'.: 152 

W.Smith : . 355 

Kimmell v. Willard 256 

Kinoaid v. Conly 336, 342 

V. Dormey 489 

V. Price. .7 351 

w.' Wall-Paper Co 796 

Kine v. Turner 355 

Kineon v. Bonsall 160 

King's Estate. 194 

King, Ex parte ' 829 

King's Trusts, Inre 383 

King V. Baldwin 552, 649, 762 

V. Bardeau 624 

W.Bill.... 471 

V. Cushman 169 

V. Denison 120, 164 

W.Goodwin 809 

w. Greves 264 

w. Grocery Co 287 

V. Hamilton 159, 606 



King V. Hamlet 374 

V. Hawkins 286 

w. Holbrook... 326 

w. Jenkins 89 , 

ti. Kinfe 727, 504, 864 

V. Lucas 187 

w. Marissal 807 

w. McVickar 556 

w. Miller 702 

^Mitchell 164 

w. Mollohan. 205, 207 

w. Moniap Co 688 

w. Morford , 601 

V. Ordway 410 

w. Payan 62 

, - w. PiUow 78, 741 

w. R. Co.... 288 

w. Remington 243 

V. Roney 331 

w. Ruckman 589, 609, 625, 628 

w. Savery 408 

W.Talbot 238, 239 

w. Townshend 861 

w. Weiss 692 

King and Holland (The) ....... 92 

Kingman v. Mowry 425 

King of Spain v. Hallett 849 

King of Two SiciUes v. Wilcox . . 846 

Kingsbury w. Burrill 288 

V. Christy 167 

Kingston's Case (Duchess of) 

479, 480, 496 

Kingston w. Kingston 723 

Kinike's Estate 228 

Kinkaid v. Hiatt 655 

Kinkead v. Ryan 546 

Kinnaird w. Miller's Ex'rs 209 

Kinne W.Webb ....442, 443 

Kinnear v. Miner 441 

Kinner v. Ry. Co 72 

Kinney w. Basoh 722 

w. Redden 605 

w. Service 489 

Kinsler w. Clarke 727 

Kintzing v. McElrath 358 

Kip V. Bank of New' York . . 160, 239 

V. Deniston . . . . ( 247 

Kipp V, Laun 611 



TABLE OF CASES* 
[The references are to the pages.] 



Kirby v. Boyette 189 

V. Harrison 752 

V. Raynes .272, 429 

W.Taylor 404 

Kirchman v. Standard Coal Co. . 492 

Kirk D.Clark 423 

V. Crutohers' Adm's 772 

«. Hartman 492 

Kirkland v. Downing ~. . . . . 607 

Kirkman v. The Bank. 542 

V. Vanlier 758 

Kirkpatriok v. Bonsall 379 

V. McDonald.... 63, 160 

w. Pettis 610 

«. Reeves 352 

Kirksey v. Fike 597 

Kirwan's Trusts, In re 437 

Kirwan v. Cullen 398 

V. Murphy 64, 671 

Kirwin v. Petroleum Co 700 

Kiser v. Richardson 356 

kisler V. Kisler .125, 147, 148 

Kisor's Appeal. 735 

Kiasel v. Lewis 703 

Kisterbock's Appeal .342, 346 

Kistler's Appeal i. .355, 368 

Kistler v. Weaver , ... .60, 687 

Kitchen v. Chantland. 31S 

Kithcart v. Kithcart. /. 287 

Kjolseth V. Kjolseth 429 

Klatt V. Dummert 296 

Klein v. Borchert ■ 406 

V. Livingston Club 692 

V. Waltman 169 

Kleimnan v. Gieselmann 317 

Kline's Appeal 156 

Kline v. Kline 401, 433, 436 

i«. Machine Works 553 

V. McDonnell 152 

V. Ragland 153, 156, 157 

V. Vogel 68 

Klopenstein v. Mulcahy 365 

Klopp V. Lebanon Bank. . ^ 542 

Knabe Co. v. Piano Co 723 

Knappv. Bailey. 458, 460, 463, 486 

V. Transfer Ry. Co 696 

Knappen v. Freeman 367 

Knatchbull «. Hallett 872 



Kneeland v. American Loan & 

Trust Co 

Kneip v. Schroeder. 

Kneisley v. Kniseley 

' Knevals v. Florida Cent. & Pen. 

R. R. Co 

Knickerbocker Co. v. Oneonta, 

etc., R. Co .' . 

Knickerbocker Trust Co. v. Steel 

Co 571, 572, 

Knight, Matter of 

Knight V. Boughton. . . 118, 119, 

V. Glasscock. .\ ....... . 

V. Knight 

V. Selby 

V. Simmonds 

Knikel v. Spitz 

Knopfler v. Flynn 

Knott, Ex parte 

Knott, In re 

Knott V. Morgan 

Knowack, Matter of 829, 

Knowles v. Lawton 

Knowlton v. Walker 

Knox V. Armistead 

V. Easton 

V. Jordan 

I i. . Mackinnon 240, 

V. New York 

V. Reese 

». Singmaster 399, 

Knox Co. V. Harshman 

Koboliska v. Swehla , 

Kodak Co. v. Warren 384,' 

Koecker"w. Coke Co 

Kcehler t>. Hughes 

V. iCoehler. 

Kcenig's Appeal 99, 

Koenig v. Dohm 

Kohler Mfg. Co. v. Beshore 722, 

Kohlrepp v. Ram 

Kohn V. McNulta 

Koke Co. V. Coca-Cola Co , 

Kommer v. Harrington 

Koockogey v. Flewellen 

Kopper V. Dyer 

Kome V, Korne 



CV 



562 
729 
510 

249 

318 

574 
239 
135, 
142 
325 
135 
121 
731 
340 
352 
453 
832 
718 
831 
274 
255 
,243 
255 
190 
246 
690 
690 
404 
647 
549 
730 
698 
547 
176 
194 
621 
723 
613 

19 
720 
377 

59 
312 
323 



CVl 



TABLE OP CASES. 
[The references are to the pages.] 



Komegay v. Everett 320 

Kortright v. BufEalo. 293 

Kost V. Bender 350, 351 

Kountz V. Kirkpatrick 278 

Kountze v. Hotel Co 866 

Kowalke v. The Mill., etc., Co. 

. 317, 329 

Kradwell v. Thiesen 385 

Kraft V. Neuffer '. . 128 

D.Welch 729, 731' 

Kramer v. Arthurs 453 

V. Slattery... 684, 686 

V. Surety Co 544 

Kramph's Estatfe 223 

Krankel'a Ex'x v. Krankel. .120, 126 

Kraus v. Bank 364 

Kreamer ij. Earl 606 

Kreb's Estate 119 

KregUnger v. New Patagonia Co. 262 

Kreher v. Seckett 649 

Kreiser's Appeal 507 

Kretchmar v. Ruprecht . . .' 647 

Krider v. Lafferty 463, 469 

Kroecker v. Coke Co . : 698, 703 

Kroll V. Coach ^. ...... . 168 

Kronfeld v. Missal 348 

Kronheim v. Johnson 115 

Krueger v. Armitage 341 

V. Brooks 860 

Kruse v. Steffens 173 

Knitz V. Gardner 268 

'. Kuelkamp v. Bidding 367 

Kuhl V, Mayor of Jersey City. . 492 

Kuhn's Appeal 376 

Kuhn's Estate. . T 278 

Kuhn V. Eppstein 625 

V. Newman 98, 100, 102 

Kuhne v. Law 799 

Kuhnes v. Cahill 291 

Kulp V. March. 123 

Hunert v. Strong 264 

Kunke v. Wherry 308 

V. Wolferberger 264 

Kuntz V. Tonnele 607 

Kuntzehnan's Estate 99, 195 

Kupsiok V. Diestelhorst 822 

Kurdy v. Rogers 610 

Kurtz Estate 627 



Kyes V. St. Croix Co 670 

Kyle V. Barnett. 242 

W.Frost 59 

«. Perdue 409 

V. Perfection Mattress Co. . 720 
Kymburley v. Goldsmith .... 13, 586 

Kynerw. BoU 324 

u. Kyner ,. 541, 549 



La Brie v. Cartwright 461 

Laeey, Ex parte 415 

Laceyw. HiU :... 798" 

Lackawanna Trust Co. v. Gom- 

eringer 541, 545 

Lackey's Appeal 517 

Lackland v. Hadley 313 

t>. Walker 217, 231 

Laclede Bank v. Schuler 291 

Lacombe v. Forstall's Sons 60 

Lacon, In re 826 

Lacon v. Allen 579 

V. BriggsT 66 

». Lacon 826 

Laconia Savings Bk. v. Vittum. . 325 

La Cotts V. Quertermons 496 

Laddw. Chamber of Commerce. 534 

». Harvey.- ; 863 

w. Ladd 258 

V. Osborne 685 

Ladley v. Creighton 581 

Ladue ». Railroad Company. . . . 272 

. Lady Forrest Gold Mine.^ 414 

Lady Hastings, In re 186, 187 

Lpdy Hood v. Mackinnon 328 

Ladjrwell Mining Co. v. Brookes . 414 

Lafean v. Caramel Co 58 

V. Weeks 723 

Laffranchini v. Clark 546 

Lagarde v. AnnisttJn, etc., Co. . . 170 

Lahey v. Broderick 158 

Laidlaw v. Organ 348, 358 

Laing V. Evarns 492 

Laird's Appeal 513 

Laird v. Birkenhead Railway Co. 610 
Laird, etc., Co. v. County of 
Pine 669 



TABLE OF CASES. 
[The references are to the pages.] 



CVU 



La Junta & Lamar Canal Co. v. 

Hess .: 612 

Lake'v. Gibson. . . . .' ... .70, 792 

Lake Oharles'i). R., etc., Co. . . . 649 

Lake Erie Co. v. Chilenski 441 

Lake Erie & W. R. Co. v. City of 

Lake Fremont 701 

V. Michener 736 

Lake Roland Elev. Ry. Co. ». 

Hibernian Soc ■. 484 

Lake Shore & M. S. Ry. Co. v. 

Richards 746 

Lamb's Appeal -. . . . 242 

Lamb's Estate, In re 834 

Lamb v. Eihn Co.. . .^ 611 

V. Harris 328 

Lambe v. Eames .'136, 137 

Lambert v. Railroad 685 

■ Lamberton v, Dunham 360, 361 

■ V. Youmans.67, 113, 443 

' Lamberton's Estate 513 

Lambton v. Mellish 704 

Lammon v. Hartsook ^ 490 

Lammot v. Bowly 487 

Lamon v. McKee . . _. 290 

Lament o. Stinson 460 

Lamoreux v. Bayfield County. . . 471 

Lampet's Case. 276 

' Lamson v. Drake 256 

». Moffat 283 

,». Sutherland 270 

Xancaster v. Dolan. . . . 188, 191, 431, 
447, 448 
W.Kathleen Oil Co.. . 60 
Lancaster Co. Nat. Bank v. 

Huver 584 

Lancaster Trust Co. v. Long. . . . 368 
Land & Water Co. v. Sup. Ct. of 

Fresno, County , 629 

Land Co. v. Coal Co 760 

!>. HiU 466. 

V. Logan 539 

V. Preciado 859 

». Ronth....- 146 

Land, etc., Co. v. Irrdist 649 

Lande'U v. Hamilton < 731, 732 

Landers v. Landers ; 683 

Landes v. Brant 463, 470 



Landes v. Walls 61 

Landon v. Hutton 131 

Landreth (A.) Co. v. Sohevenel. . 356 

Landsdale !). Smith. 344 

Lane's Appeal 810 

Lane v. Capsey 695 

V, Lane's Adm'x 331 

V. Lodge 785 

V. Maple Hill 243 

V. Newdigate. . . .636, 638, 734 

V. Newton 424 

V. Page 437 

Lane Lumber Co., In re 572 

Lang V. Choctaw R. R. Co 285 

V. Hedenberg. 313 

V. Waring 792 

Langdale v. Briggs 856 

Langdon v. Blackburn 340 

V. Waring 289 

w. Woolfolk 592 

Langford v. Barnard 254 

V. Perrin 535 

Langstaffe v. Fenwick -. 357 

Langton v. Horton. . . , 281 

V. Waring... 289 

Lanigan v. Bradley Co. 290 

V. Miles .~ 117 

Lannin'g v. Smith 74 

Landsdale v. Smith 344 

Lansdown v. Lansdowa 320 

Lansing v. Eddy 648 

D.Starr 66, 344 

Lanyon v. Chesney. 625 

Lanzit v. Sefton Mfg. Co. 386 

Laoner v. Light Co 703 

Lappin v. Crawford? 397 

La Prelle v. Bowen 599 

Lare v. Harper and Bros -718 

Larisey v. Larisey 146, 153 

Larkey v. Gardner.''. 850 

Larlsins v. Rhodes 154 

Larrabee v. Hascall 132, 290 

V. Larrabee 373 

Larrdwe v. Beam 453, 779 

Larscheid v. KiiteU 71 

Lasher v. Loeffler 607 

Lashmar, In re 109 

La Sociedad "Germinal" v. Nabla 718 



CVIU 



TABLE OF CASES. 
[The references are to the pages.] 



Lassiter v. Dawson 198 

Laswell v. Hungate 214, 225 

Late Corporation of the Church 
of Jesus Christ of Latter Day 

Saints v. United States 223 

Latham v. Henderson 152 

Lathrop's Appeal 544 

Lathrop v. Columbia Collieries 

Co. 595 

W.Gilbert 159, 160 

Latimer v- Marchbanks .... 487, 610 
V. Irish-American Bank 57 

Latrobe v. Carter * 505 

V. Tiernan 247 

Latshaw's Appeal 765 

Latta V. Kilbourn 170 

Lattin v. Hazard 588 

Laubengayer v. Rohde 611 . 

Laughman's Appeal 722 

Lauricella «.' Lauricella 171, 176 

Laurel Creek Co. v. Browning. . . 314 

Laurens v. Lucas 613 

Lavelle v. Bellin 661 

Laverty v. Moore 489, 591 

Lalw's Estate 238 

Law V. Grant 358 

V. Local Board of Redditch ." 308 

Lawes w. Bennet 515, 523 

Lawley v. Hooper 336 

Lawler v. Loewe 390, 692 

Lawlor v. Merritt '717 

Lawrence Co. Bank v. Arndt. . . 488 

Lawrence v. Blow i . . 533 

V. Campbell 847 

■ «. Clark 430 

V. Hammett 783 

V. Lawrence 304, 502 

B. Luhr 484 

V. Saratoga Lake R. 

Co -. 612 

V. Sharpless 721 

V. Tucker. .- 272 

Lawryw. Spaulding ' 150 

Laws V. Fleming 377* 

Lawson's Estate 213 

Lawson v. Burgee 250 

V. Hays 61 

V. Lawson 121 



Lawson v. Lyon ^ 289 

Lay V. Brown 198 

V. Gaines 672 

V. Myers 806 

Laycock v. Johnson. 570 

Lazarus's Lessee v. Bryson 414 

Lazarus v. Bryson 173 

V. Lazarus 149, 150 

V. McGuirk. .^ 647 

Leach v. ^nsbacher. . .453, 463, 464 

V. Beattie 771 

«. Curtin 268 

Leahey w. Witte 368 

Leaird v. Smith 627 

Leake v. Robinson 165 

Lear v. Chouteau 601 

Learned u._Holmes 341 

Learoyd v. Halifax Joint. Stock 

Banking Co , . . 848 

Leary v. Corvin 158 

K.King 434 

Leather Cloth Co. ii. Am. Leather 

Cloth Co 718, 719, 725 

Leather Cloth Co. y. Lorsont . . . 386 

Leavenworth v. Brendel 545 

Leavitt v. Windsor Land & Li- 

vestment Co 673 

Leaycraf t v. Hedden 190 

Leberw. Ross „ 661 

Lechmere v. Earl of Carlisle .... 820 

Le Comte v. Freshwater 781 

Ledyard v: Butler 431 

V. Phillips 318 

Lee's Admrs. v. Reed 763 

Lee's Estate 194 

Lee, In re. ... 546 

w. Ball Club 608 

V. Barrett 541 

V. Fernie 439 

V. Gijes 463 

V. Hollister 420 

V. Howe 626 

V. Jones 348 

V. Kepby 371 

V. Kirby 603 

V. Lee. 530 

V. Overstrteet 308 

V. Percival. 319, 321 



TABLE OF CASiES. 
[Tke^references are to the pages.] 



CIX 



Lee"«. Prieaux 182 

V. Read 847 

V. Stone 270, 610 

Leech v. Schweder 729 

Leeds and Hanley Theatres, In 

re. ........ .< 414 

Leeds v. Amherst 487 

Leeds (Eiuke of) v. Corp. ot New 

Radnor. . . 783 

». Powell 783 

Leeds Est. Build. & Jnv. Co. v. 

Shepherd .^241 

Leek v. Cowley 326 

Leeper v. Hersman I 482 

W.Taylor 126, 131 

Lees Estate 194 

Lees'*. Wetmore 861 

Leete v. Pilgrim Cong. Soc 704 

Leferve's Appeal 793 

Lefferson v. Dallas \. 621 

Legard v. Hodges. 212 

L«Gendre w. Byrnes ^409 

Legg V. Asgill 213 

V. Goldwire 107 

Leggat V. MoLure 260 

Leggate v. Kam 547 

Leggett V. Dubois 109, 152, 154 

V. Hunter. . . ". 245 

V. Perkins 103 

Lehigh Valley R. R. Company 

V. TVoodring 288 

Lehigh Zinc & Iron Co. v. Barn- 
ford 351, 362, 363 

Le Hote v. Boyet " 660 

Lehman v. Gunn 424 

V. Roberts ,.'; 861 

V. Trust' Co ...:... 863 

Lehr v. Beaver 204 

Leiberman v. Bowden 572, 

Leiby». Wolf 468 

Leicester v. Front Imp. Co 606 

Leigh, In re 124 

Leigh V. Cfump 601 

».. Harrison Ill 

Leighton ». Young 70 

Leininger Lumber Co; v. Dewey, 423 

Leiper's Appeal ^11 

Leiper's Ex'rs v. Irvine 511 



Leisenring v. Black 173 

Leitohw. Northern Pacific Ry. 

Co 288 

V. Wentworth 669 

Lembeck v. Nye 685, 695 

Lemke v. Dietz 720 

Lemmon v. Lemmon 610 

V. Town of Guthrie 

Centre , 684 

Lemon v. Randall 607 

Lemp., Hunting & Fishing Club 

W.Cottle , 692 

Lench «. Lench 163 

Le Neve v. Le Neve, 446, 447, 448, 

449, 450, 459, 460, 461, 463, 464, 

, I 466, 468, 469 

L'Engler v. Qverstreet. 628 

Lenman v. Jones 592 

V. Randell 607 

Lennig's Appeal 128 - 

Lennig's Estate 225, 232, 295, 278, 
566, 602 

Lennon v. Lake Shore Ry 637 

Lenox v. Roberts 300 

Leonard's Lessee v. Diamond. 97, 98 
Leonard v. Board of Directors. . 611 

;- , • :' V. Farrington 288 

'' V. Poole. . . .V 71 

V. Springer 361 

Leopold V. Silverman 584 

V. Weeks. ^ 289 

Le Roy v. Corp. of New York. . . 669 
w.^Steamboat Co. . ..... 491 

Leiberman v. Bowden 572 

Leschen v. Fuller. 7^4 

Leser v. Wagner 668 

Lesesne v. Witte ., 137 

Leslie v. Guthrie 279 ' 

V. Lorillard 389 

LesUe Co., R., v. Sheil. . , , 496 

Lessee of Heister v. Fortner. ... 468 

Lesser v. Henry 843 

- V. Wagner 668 

Lessig V. Langton 71 

Lester v. Kinne 621 

L'Estrang'e «. L'Estrajige 286 

Letcher v. L^tch^r IB3 

Letherman v. Hauser 691 



ex 



TABLE OF CASES. 



[The references are to the pages.] 



Letton V. Gooden 659 

Leupold V. Weeks 289, 569 

Leuty V. Hillas 328 

Levenson v. Bonaparte 687 

Leverett v. Barnwell 2^8 

Leverton !). Waters '. 767 

Levi V. Evans 120 

LeVick V. Brotherline. 365 

£evins v. Stark 289 

Levis V. Ryan; 441 

Levy V. Abercorris Co 597 

V. Bank of United States. . . 3 

• V. Holberg 464 

V. Iroquois. Building Co... . 613 

D.Levy. .' 231, 235 

V. Roper. 344 

V. Trust Co 460 

Levystein Bros. v. O'Brien 647 

Lewie v. Hallman 74 

Lewin's Trusts, In re 200 

Lewis and Nelson's Appeal 72 

Lewis V. Adams 181 

u. Baird 468 

V. Baker 487 

V. Boguechitto 668 

V. Bollinger 286 

V. Brice. ._ .' 182 

V. Broun 407 

V. Buford 791- 

V. Curnutt :.124, 129 

V. Elrod 183 

V. Ford , 491 

V. Gollner 731 

V. Hemdon 613 

V. Herrera 421 

V. Hickman 74 

V. Holdredge 296 

V. Lewis 329, 334, 764 

V. Love's Heirs 431 

V. Matthews . 181, 182 

V. McGrath 429 

V. McLemore 360 

V. Mew ., 471 

V. Nangle 256 

V. Nunn 483 

V. Palmer 642 

V. Pead. . . .^ 396 

V. Reid ,"! 245 



Lewis V. Shearer 572 

V. Spencer 670 

V. Tobias .,_ 750 

». White 153 

W.Yale...... 190 

Lewis Pub. Co. v. Wsonan 754 

Lexington Brewing Co. v. Hamon 289 

Leyson v. Davis 132 

Lezinsky v. Company 156; 169 

Libby v. Rosekrans ^ . . 862 

Liberty Bell (The) 670 

Libman v. Levenson 606 

Lick V. Munro : 482 

Lickbarrow v. Mason. 432 

Liddard v. Liddard 142 

Liddell's Ex'rs v. Starr 864 

Liddle v. Cook 314 

Lidderdale v. Montrose 286 

V. Robinson 544 

Lies». Stub 323 

Life Association of America v. 

Boogher 739 

Life Association of Scotland ». 

McBlain. 34l 

Life Ins. Co. v. Bangs 647 

V. Parker &_Co. . . . 541 
Life Preserver Co. v. National Co. 611 

Lifter v. Earle Co 162 

Light V. Light 395 

w. Zeller 156 

Lightner's Appeal 125, 289 

Lightner v. Mooney 468 

Ligon V. Ligon 813 

V. Ilogers 304 

Llles V. Terry 407 

Liley v. Hey 209 

Lillard ti. Oil Co.. ... 809 

V. McGee. : . . . .419, 425, 805 

V. Turner 190 

Lillia V. Airey 809 

Liller, In re 549 

Lilly V. Kroesen 764 

Lincoln v. Morrison... . . > 160 

V. Rutland R. Co 660 

V. Wakefield 525 

Lincoln Bank v: Ewing 255 

Lindblad v. Board of Education 670 
Lindelse v. Realty Cor 314 



TABLE OF CASES. 



CXI 



[The references are to the pages.] 



Lindley v. O'Reilly .78 

Lindsay v. Federation of Labor. . 692 

V. Gibbs ,. . . 281 

V. Harrison.-. 194 

V. Jackson 530 

». Morse 548 

, V. Pleasants 518 

Lindsey v. Lindsey 366 

V. Rankin 456 

Lindsley v. Dodd 113 

V. Ferguson 343 

w. Union Mining Co... . 79 

Line v. McCall 288 

Lines v. Darden 136, 139 

V. Lines 129~ 

Lingen v. Simpson. 786 

Lingonner v. Ambler.- 493- 

• Linker v. Smith 433 

Linn v. Neldon's Admrs > 647. 

Linnel v. Hudson '..... 153 

Lins V. Lenhart 204 

Linton v. Safe Deposit Co 264 

Lipham v. Shamblee . . . ' 745 

Liphart, In re , 132 

Lippincott v. Barton 762 

W.Evans ;... 806 

V. Mitchell 183,^89 

Liptrot V. Holmes 97 

Liquidation Estates Purchase • 

Co. V. Willoughby 274 

Liskey v. Snyder; 260 

Lisle V. LidtUe 751 

V. Reeve .260, 261 

Listman Mill Co. v. Wm. List-_ 

man Milling Co 725 

LitchMd, In re '. . . 798 

Little, Inre ; 193 

Little V. Braun 265 

». Brown .'. 574 

a. Chadwick'. . 162 

-». City of Bessemer 61 

V. Ragan 419 

». Wilcox., .... .' 99 

Littleton v. Burgess 64 

Litton V. Baldwin 191 

Livermore v. Aldrich 153 

V. Middlesborough, . . 
etc., Co...,.,.. 349 



Liverpool Association v. Pair- 
hurst 494 

Liverpobl, etc., Co. v. Hunter. . . 666 
Liverpool Wharf v. Prescott .... 489 

Livesley v. Johnston 594 

Livey v. Winton ..57, 759 - 

Livezey's Appeal 99 

Livingston v. Dean. 297 

V. Hubbs 344 

V. Livingston 204, 306, 

684, 783 

V. Newkirk 564 

». Reynolds. .' 680 

V. Tompkins 313 

Llewellyn v. Cauffiel 700 

W.Coal Co 60 

V. Mackworth 501 

^ Lloyd's Estate 524 

Lloyd V. Brewster 443 

V. Brooks 125 

«. Coote 405 

w. Dimmack 854 

V. Galbraith , . .539, 545 

V. London, Chatham and 

Dover R. Co.. 731 

w. Lynch 148, 154, 172 

V. Wait.' 256 

Lloyd's. Bank, Limited v. Bul- 
lock 298, 431, 455 

Lobdell V. Baker 348 

V. State Bank of Nauvoo 430 

Lock V. Fulford 539 

Locke a. American Ins. Co 359 

w. Whiting ,..441, 541 

Lockhart v. Ferry 625 

V. Leeds 168, 368 

Locklin v. Davis 495 

Lockwood V. Ewer 582 

■»> Lockwood 398 

Loder v. Allen. 74 

I^oewenberg v. De Voigne 610 

Loewenstein v. Biembaum 869 

Loewer v. Harris 358, 361 

Lof ten V. Sterrett 154 

w.'Whitboard 157 

Loftus V. Heriot 192 

L6gan v. Aabel '. 369 

«!. Cab}eCo 653 



cxu 



^ABLB OF CASES. 
[The references are to the pages.] 



Logan V. Davis 491 

V. Gardner 483, 490, 495 

. V. Logan 203, 420, 809 

V. NeiU 68 

V. Simmons 433, 434, 435 

Logue's Appeal 338 

Logue V. Langan 620 

Lohiiiau v. Crouch. . .'. •. 74 

Loker v. RoUe 60 

Lomax v. Ripley 121, 164 

. Lombard v. Morse 436 

Lomerson v. Johnston 348, 397' 

London v. London 776 

London Bank of Australia v. 

Lempriere . 186 

London County Council v. Allen . 451 
London, etc., R. Co. v. Lanca^ 

shire, etc., R. Co 684 

London (Mayor of) v. Hedged. . 681 
London (University of) v. Yar- 
row 214 

Lone V. Goodson 795 

Lone Star Salt Co. v. Ry. Co.. . . 611 

Long's Appeal 118, 768 

Long V. County 73 

V. Chandler 600 

V. Hartwell 325 

V. Kasebeer 687 

V.Kendall 351 

W.King 151, 156 

V. Loan Co 377 

V. Majestre 758 

V. McKay 156 

w. Perdue 176 

V. Richards 256 

D.White , 180, 181 

t). Wier. : 506 

V. Woodman 356 

Longino v. Press Co 610 

Longley v. Griggs .■ 535 

"liongwell V. Bentley 767 

Longwood Valley R. Co. v. Baker 637 
Lonsdale Co. v. Woonsocket.398, 655, 

657v 

Loog V. Bean 634 

Loomer v. Wheelwright 272 

Loomis V. Loomis'. 295^ 

V. Missouri Pac. Ry. Co. 345 



Loose V. Bellows Falls Co 850 

Loosing V: Loosing 607 

Lopinsky v. Hurvitz , . . 368 

Lord's Appeal 618 

.Lord W.Hull 788 

V. Jeffkins. 375 

V. Lord. . .- 501 

V. Reed 146, 152, 153, 154 

Lord Berkley v. Countess of 

Shrewsbury 13 

Cranstown v. Johnston. ... 78 
Cranworth inS ynut v. 

Simpson ^. 130 

Hinchiubroke v. Seymour. . 437 
Kensington v. PhilMps .... 610 

Manners v. Johnson. .729, 731 
Montague w. Dudman.653, 844 
Perceval v. Phipps. ....... 716 

Portarlington v. Soulby 652, 666 
Srtatheden and Campbell, 

Inre 217 

Lorillard v. Coster 510 

Loring v. Hildreth 859 

V. Loring 136 

V. Pahner 120 

Lorings V. Marsh 209, 224 

Lothrop V. Gondean 611 

V. Marble 622 

Lottimer v. Lord 862 

Loucheim Bros.' Appeal 430 

'Louden v. Blythe 397 

Loudenslager v. W. H. Land Co. 411 

Loughran v. Gorman 487 

Louisville (Bank of) v. Hall .... 792 

Louisiana Corp. v. Oil Co 73 

Louisville R. R. v. Smith 59 

Louisville R . R. Co. v. Bosworth 

61, 74, 671, 677 
, ti. Greene.. 668 

V. Railroad 

Commissioners 692 

Louisville Ry. Co. v. Louisville 

Trust Co 726 

Louisville Tel. Co. v. City 707 

Louvalle v. Menard.' 771 

Love V. Ardmore Stock Ex- 
change 291 

V. Hendriok 150 



TABLE OF CASES. 
[The references are to the pages.] 



cpu 



Love ». Love 129 

' «.^ Sierra Nevada Mining 

Co 331 

V. Watkins 599 

Loveland v. Blair 559 

V. Cooley 553 

Lovell V. Galloway. 62, 843 

, . V. Minot I... 240 

Loveridge v. Cooper 294 

Lovett V. Lovett. 858 

Loving V. Hunter 105 

Low V. Bouverie 362, 490 

V. Holmes 768, 772 

f. Pew...: 279 

Lowe V. Allen ^^ 323 , 

V. Baker 666 

V. Hendrick 150 

V. Jones 160 

V. Lowry ^. . . . . 656 

». Peers 380 

V. Prospect Hill Cemetery 

Ass'n 701 

w. Trundle 360 

Lowell't). Daniels. 494 

K.Lowell 150 

Lowell's Appeal 216 

Lowery v. Society 364 

Lowlor V. Loewe . .'^ 390 

Lowman v. Crawford 64 

Lowndes v. Bettle 686, 688 

Lowry v. The Commercial and 

Farmers' Bank of i 

Baltimore 451 

«.Mfg.Co 660, 662 

w.'McGee 149 

w. Spear •. 373 

Lowther v. Carlton 456 

Loy V. Alston 531 

Loyd V. McCaffrey 291 

Lozear v. Shields. . . .- 393 

Lozier's Ex'ra v. Van Saun's 

Admrs 662 

L. S. & M. S. IjTy. Co. v. Hoffert. . 610 

Lucan (Earl of). In re 128, 602 

Lucas V. Atwood 795 

V. Lockhart 136~ 

I). Long. 366 

Luckett V. Williamson.. . . . .615, 622 



Luco V. De Toro 120 

Lucopoulos V. Satriopoulos . . . : . 786 

Ludington v. Elizabeth 860 

V. Ford 327 

V. Patton.. .345, 408, 488 

Ludlam v. Buckingham 608 

Ludlow w. Simond. . . . , 762 

Ludlow & Cincinnati Coal Co. v. 

City of Ludlow 669 

Ludlow V. Bressler 398, 404 "" 

Ludwig V. Highley 474 

Luebke v. Salzwedel 72 

Luelske v. Roberts 353 

Luff V. Pope ■ 289 

Luffberry's Appeal 518 

Luken's Appeal 239 

Lukers v. Sturtevant 707 

Lum w.'McEwen 392 

Lumljii^r Co. v. Adams 485, 

./* V. Hines 684 

». Newcomb...l93, 294 

t>. RdTche 764 

Lumberman's Ins. Co. v. Sprague 541 
Lumbermen's Mut. Ins. Co. v. 

Railroad Co 542 

Lumley v. Miller 594 

V. Wagner. . . .676, 730, 733, 
734 

Lump Co. V. Mantz .' 489 

Lundquist v. Hollor^n 685 

Lunn V. Thornton 279' 

Lupton V. Janey 763, 764 

V. Lupton 813 

Lurie v. Pinanski 72 

Luse V. Rea 572 

Lush'^ Trusts 200 

Lusk V. Lewis • 165 

Luther v. Luther 369 

Lutz V. Matthews. 153 

Lyde v. Mynn . ..^ 284 

Lydiok a. Gill. . 484 

Lyle V. Addicks 57 

V. Ducomb 271 

Lyles w.' Williams 865 

Lyman v. Gedney 311, 597, 614 

w. Little. 334, 745 

V. United Ins. Co.. . .326, 334 
Lyme v. Allen , 643, 646, 647 



CSf^V 



TABLE OF CASES. 
[The references are to the pages.] 



Ljmch V. Herrig 152 

I). Kerslake 351 

V. Rooney -. 117 

- V. Rosenthal 378 

V. Union Inst, for Sav. 

687 
V. Versailles Fuel Gas 

Co...... 307 

«. Willard 762 

Lynch Co. v. Bank. . . i 553 

Lynde v. Lynde 286 

Line's Ex'rs v. Crouse 188 

Lynn's Appeal „..,...,. 680 

Lynn v. Culbertaon. ......'.... 379 

V. Gephart 510 

V. Hockaday 622 

V. Lynn. . 124 

Lynn Shoe Co. v. Aubum-L^n 

Shoe Co. .j^. 722 

V. Lunn .u 59 

Lyon's Appeal 643, 672 

Lyon V. Clark 572 

V. Gombert. 861 

V. Home 398 

V. Moore 463 

V. Sanders 318 

». Union 649 

Lyons (Mayor of) v. Advocate 

Gen. of Bengal 223, 224 

V. Bass. 148 

V. Berlau 158, 

V. Gulliver 703 

V. Importers' Bank 659 

». Van Gel 736 

w. Wilkins 693 

M 

Mabb V. Merrip,m 742 

Macaulay v. Philips 201 

Macauley «. Smith 262 

Macbeth v. Schnelbaeh 674 

Macbryde v. Weeks 629 

MacConnell v. Lindsay . : 188 

t>. Wright 183, 189 

Maccubbin v. Cromwell 117 

MacDonough v. Gaynor.. . .869, 870 
MacDougall v. Bank 175 



Macduff, Inre 213, 227 

Macduff V. Macduff. . .213, 214, 227 

Macfaddenf. Jenkins 173 

-MacGregor v. MacGregor 79, 80 

Machir v. Burroughs 189, 191 

Machold v. Faman 628 

Mack's Appeal 122 

Mack W.Hill 73 

w. Mcintosh 58, 631, 755 

V. Village of Frankfort. . . 341 

V. Wet'zlar 254 

Mackall v. Casilear 752 

V. Mackali 400 

Mackason's Appeal -. Ill 

Mackay v. Martin 355 

Mackey v. Maxim 860 

MaoKenzie v. Trustees 225 

Mackintosh v. Ogilvie 80 

Mackretht). Symmens.. .„ .571* 573, 
I 574, 575 

Maclean v. Fitzsimmons 751 

Macmillan & Co. v. Dent 716 

Macomber v. Peckham 617 

Macon (Bank of) ». Bartlett.". . . 442 

Macoupin Co. v. People 371 

Mactavish v. Kent, Circuit 

Judge 646 

Macy V. Roedenbeck ._. . . 291 

Maddever, In re 67 

Maddison v. Alderson 618, 619 

Maddox v. Maddox 382 

V. Smith 468 

Maderia v. Hopkins 609 

Madison «. Alderson 618 

!). Copper Co 698 

Madison Athletic Ass'n v. Brit- 
ton 597, 605 

Madison Av. Church v. Madison 

Av. Church 63 

Madison Co. v. People 37lr 

Miirisen v. Madsen. 156 

Maekotter v. Maekotter 760 

Maffitt's Admr, v. Rynd..ll6, 265, 
271, 747 

Magaw V. Lambert ... 7 303 

Magel V. Benev. Soc ; . 635 

V. Milligan 495 

Maggini v. Pezzoni 394 



TABLE- OF CASES. 
[The references are to the pages.] 



CXV 



Magic Co. V. Lewis 421 

Magie v. Reynolds, 296 

MagiU V. Brown. .209, 214, 217, 232, 

■ 235 

Magner v. Crooks 110 

Magniac v. Thomson 65, 66 

Magruder v. Drury _, . . 243 

V. Peter. 575 

Maguire v. Heraty 76, 607 

V. Maguire. . .829, 831, 832 

V. Smock -. 387 

Magwood V. Johnson 188, 191 

Mahaffy v. Faria 265 

Mahan v. Mahan 131 

P.Smith 407 

Mahana v. Blunt 621 

Maher v. Aldrich 159 

V. Hibernia Ins. Co 327 

Mahon v. Leech' 605 

Mahoney t». Middleton 470 

Mahomer v. Harrkon 151 

Mainland v. Upjohn 262 

Maiden v. Menill 304 

Malim v. Keighley. . . .118, 135, 138 

Malin v. Malin 589 

Malines w. Brown. 622 

Malins v. Freeman 606 

Mallalieu ». Hodgson. ., 497 

Malloney v. Horan 493 

Mallory ».-Kessler 487 

V. Leach 348 

V. Vanderheyden. . . . , . 189 

Mallow V. .Walker 421 

Malloy t/. Malloy 149 

Malone v. Philadelphia. . . ■. 309 

W.Stewart 532, 534 

Maloney v. Terry 63 

Malsberger v. Parsons 255 

Maltby «. Cpnklm 572 

Mammoth Vein Coal Company's 

Appeal 699 

Manatt v. Starr 742 

Manbeck v. Jones 700 

Manchester v. McKee 808 

Manchester Cotton Mills v. Man- 
chester ;.. 689 

Manchester Railway Co. v. 
Worksop Board of Health. ... 636 



Manchester Ship Canal Co. v. 
Manchester Racecourse Co. . . 730, 

733 

Mandel v. Bron 70, 369 

Mander v. Falcke , 732 

Manderson v. Commercial Bank . 737 

Mandeville'i;. Solomon ^148 

u. Welch'. 287, 288 

Manes v. Durant 433, 435 

Manfredo v. Manfredo 813 

Mangold v. Bacon 482 

Manhattan, etc., Co. v. Thomp- 
son 190 

Manhattan Mfg. Co. v. New 

Jersey Stock Yard Co 635 

, Manion v. Manion . ^ 760 

Manitou Springs Co. !). Schueler. 722 
Manitowoc Malting Co. v. The 
Milwaukee Maltmg Co. . .^ . . 718 

Manly v. Slason 574 

Mann v. Betterly 393 

V, Darlington 430 

w. Falcon 258, 259 

Manners (Lord) v. Johnson. 729, 731 

Manners v. Manners 767 

Manning v. Albee. 350 

V. American Security 

Co 602 

V. Gregoire 859 

V. Lechmere 440 

V. Mannmg 242, 244 

V. Markel 256 

V. Pippen 369 

V. Riley 423 

Mannos v. Bishop. 862^ 

Manser's Case 317 

Mansfield v. Sherman 607 

a. Wallace 355, 407 

Manship v. Newton. 170 

Mansur-Tebbetts Imp. Co. v. 

Bruton 796 

Mantz V. Buchanan 777 

Manufacturers' Bank v. Hazard . 492 
Finance Co. v. 

Jones. . . 662 

Gas Co. V. In- 
- diana Nat. 
Gas Co... 680, 707 



CXVl 



TABLE OF CASES. 
[The references are to the 'pages.] 



Manufacturers' Nat. Bank v. 

Swift.... 323, 490 
Manufacturing Co. v. Camp. . . . 308 
V. Halybur- 

ton.606, 627 
V. Sherburne 

' Co 637 

Maple V. Kussart 484 

Maps v. Cooper^ ............. 651 

Marberger v. Pott 551 

Marble Co. v. Bipley. .587, 608, 
611, 787 

Marbury v. Madison 849 

March v. Eastern R. Co 737 

V. McNair 745 

Marchold v. Faman 628 

Marcum v. Marcum 687 

Marcy v. Dunlap 71 

Margetts i>. Barringer 182 

Marian Co^l Co. v. Peale 597 

Marie Church v. Trinity Church 116, 
149, 160 
Marine Bank v. Fulton Bank. . . 239 
Marine Ins. Co. v. Hodgson .... 647 
Marine Iron Works v. Wiess. . . . 492 

Markella. Ray ,' 530 

Markham v. Guerrant. ^ Ill 

V. Katzenstein 149 

Markillie v. Allen 546 

Marks v. Gates. .' 603, 610 

V. Pell. -. 747 

Marlborough (Duke of) v. Godol- 

phin 144 

Marlin Fire Arms Co.' v. Shields 

714, 739 

Marlow v. Pitfield 203 

Maroney v. Boyle 576 

Marquam v. Ross 172 

Marquess of Nprthampton v. Pol- 
lock 260, 262 

Marquette Co. v. Oglesby Co. 

636, 705 
Marquis of Bute v. Glamorgan- 
shire Canal Co 782 

Marr's Appeal 366 

Marr's Estate 514 

Marriam v. Hassam 113 

Marriott v. Badger -. . . 498 



Marrow i). Stieren 533 

Mars V. Gilbert 225 

Marsden's Trust 437, 438 

Marsh v. Fairt>ury & N. R. Co. . 606 

V. Falker ~ 3jB0 

V. Garney 293 

V. Kaye ^ 811 

V. Lee. .258, 269, 270, 271, 272 

V. Marsh 159/564 

V. McNair. 322 

V. Pike 544 

V. Reed 659 

W.Scott., r 350 

Marshall v. Billingsly 395 

V. Carson 175, 415. 

V. Coleman 400 . 

V. Homjfcr 326 

«. HiU 67, 457 

t). Hubbard 366 

w. Reach 601 

V. Marshall 405 

V. Matthews 684 

V. Means 285, 328 

V. Pennsylvania Co . . . 700 

V. Porter ' 590 

t». RoU. .."..., 425 

V. Ross 718 

V. Rutton 186 

V. State Reformatory - 

61, 677 

«. Stevens. . .' 189 

V. Thorson 286 

Marthinson ti. McCutchen 606 

Marti, Estate of '...l •. 135 

Martin's Appeal 514, 519 

Martin, Inre. . . .'. 404 

Martin v. Baird ■ 117 

V. Bateman 631 

V. Bell 183 

V. Graves 751 

V. Greer 159 

V. Harwell 365 

V. Jordan 352 

V. Martin. .57, 146, 394, 405, 
502, 506, 507, 622 

V. Moore 514 

V. Morris 355 

V. N. Y., S. & C. R. Co 322 



TABLE OF CASES. 
[The references are to the pages.] 



CXVU 



Martin v. Nutkin 730 

ti. Palmer 606 

!). Sale 469 

V. Sedgwick 294 

U.Smith 160 

». Trust Co 513 

w. Wynkoop 243 

V. Zellerbach 482 

Martinez v. Bruni 539 

Martin Metal Co. v. U. S." Trust ' 

Co 562 

Martyr v. Lawrence 636 

Marvel v. Jonah 731 

V. Marvel. . : . < 106 

Marvin v. Bennett 625 

V. Brooks 762 

Marvine v. Drexel 733 

Marx V. Clisby 507 

V. La Rocque 258, 259 

Mary Evans's Estate 247 

Maryland v. Northern R. Co.. . . 682 
Maryland Clay Co. v. Simpers. . . 590 
Constr. Co. v. Kuper 

610, 613 
0. Home Ins. Co. v. 

Kimmell 57 

Steel Co. V. Marney. . 647 
Mason v. Bloomington Ass'n . . . 213 

w. Bogg 554, 558 

V. City of Chicago 493 

». Connell 788 

ti. Hull 556 

o. limbury; 135, 138 

w. Lord 532 

V. Perry 213 

' ». Pierron. 428 

V. Rhode Island Trust Co. Ill 

t). Wait, 245 

Mass V. Gibert 225 

Massee ». Snead 828 

Massey v. Allen ' 420 

V. Parker... . . .. 193, 194 

V. Sherman 138 

Massi V. Lavine 71, 429 

Massie v. Watts 78, 592, 593 

Massons's Appeal 630, ^54 

Massy v. Rowen 181 

Master v. Hansard 732 



Master v. Kirtoii .- 789 

Masterton v. Beers 349, 365 

Mastin v. Halley 611 

^. Marlow ^ 373 

Matarese v. Caldarone 808 

Mather v. Scoles ' 621 

Mathews v. Dragaud 169 

0. Jones 274 

Mathewson v. Davis 242 

V. Wakeiee 160 

Matlock V. Glover 321 

». Peppy 352 

Matson .v. Obeme 529 

Matter of Griffin , 120 

James 131, 132 

of Totten. . .' 124 

Matteson v. Dent .'. 545 

V. Whaley 685 

Matthaei v. Pownall 410 

Matthes v. Wier 589 

Matthewman's Case 186 

MattheWs Appeal. 171 

Matthews v. Aiken ■.....,.. 545 

V. Assoc. Press 385 

W.Baxter '394 

W.Brown 483 

V. Hoagland 123 

V. Jarrett 610 

V. Skinker. 737 

W.Ward 95, 98, 109 

' ». Weiler 71 

w. Whitehom 327 

*;. Wilson. ..' '. . . 273 

Mattingly v. Nye 424 

Mattingly Co. v. Mattingly, etc. 720 

Mattix V. Weand 574 

Mattocks V. Moulton 240 

V. Tremain 869 

Maundy v. Maundy 340 

Maunsell v. White 356 

Maure v. Harrison 548 

Maurer's Appeal 188 

Mauzy v. Mauzy^ 190 

Max Meadows Land Co. v. 

Brady 350 

Maxonw. Gray 356 

V. Narswing 364, 365 

w, Scott 190 



CXVIU 



TABLE OF CASES. 



[The references are to the pages.] 



Maxton ». Gheen 379 

Maxwell v. Barringer 120 

V. Frazier 663 

V. Hogg 724 

V. Kennedy 344 

V. McDaniels 866 

». Maxwell. . . . 71, 503 

». Pittenger. 396 

May.w. Frazee. 245 

w.Le Claire 630 

V. May..... ....151, 249 

Mayberry v. Ry. Co 538 

Maybin v. Kirby . . . .' 298 

Mayburry v. Brien 108 

Mayenborg v. Haynea 492 

Mayer's Appeal 637 

Mayer v. Journeymen Stone- 
cutters' Ass'n 739 

Majmard v. Maynard 359 

V. Railey 789, 790, 863 

Mayor v. Mayor of N. Y. * 328 

I). Smith. . . .~ 224 

./.Williams ,....431, 458 

^ Mayor of AmericUs v. Perry. . . . 737 

Mayor of Baltimore v. Appold. . 684 

w. Williams. 127 
Mayor of Basingstoke v. Lord. 

Bolton 783 

Mayor of Berwick v. Murray . . . 533 

Mayor of Beverly v. Att.-Gen. . . 230 

Mayor of Frederick v. Groshon . . 687 

Mayor of Gainesville v. Dean. . . 659 

Mayor of London v. Hedger. . . . 681 
Mayor of Lyons v. Advocate 

General of Bengal 223, 224 

Mayor of Macon ».• Hughes. . . . 737 

Mayor of Philadelphia v. Elliott 235 

Mayor of York v. Pilkington 653, 

667, 782 

Mayor v. Saxon 653 

Mayou, Ex parte 797 

Mayr v. Chesman 760 

Mays V. Dwight 327 

V. Rose 863 

Mazzolla v. Wilkie 341 

McAdams v. Bailey 375 

V. Gates 358 

McAfee v. Ferguson 433 



McAIeer v. Horsey 352 

V. McMurray 413 

McAlister v. Burgess 216 

McAllister v. Commonwealth. . . 160 

V. Henderson 70 

V. Irwin 533 

McAndrew v. Bassett 722 

McAninch v. LaughUn 317 

McArthur v. Franklin. 256 

McAuley's Estate ...:.- 120 

McAuley v. Wilson 224 

McBee, E!x parte 510 

McBee v. Lof tis 457 

t). O'ConneU 468 

McBlair ». Gibbes 72, 429 

McBride ». Smyth 194 

MoBroom v. Wilgus 685 

McCabe v. Colleton. '. 60 

». Crosier T 605 

V. Matthews. 605 

». Watt 636 

McCaffrey's Appeal 698 

McCaffrey v. Woodin 279, 282 

McCall V. Davis 338, 366 

McCallum v. Germantown Water 

Co 700, 702 

McCammon v. Pettitt 153 

McCandless v. Engle 336, 397 

V. Warner 121 

McCarthy v. McCarthy 410 

McCartin v. Traphagen 248 

McCartney v. Bostwick 89 

V. McCartney.. .... 394 

». Ridgway 125 

McCarfcy v. Bank 291 

w. Gas Co 703 

McCaskill v. Sav. Bank 296, 497 

W.Union Co 312 

McCauley v. MoCauley 812 

w. Union Co 312 , 

MfcClain v. Batton 74 

McClane v. McClane 858 

McClarren's Estate. ..."... .513, 524 

McClellan v. Garland 24 

V. Lewis 859 

V. McClellan 121 

V. Scott 353 

V. Taylor 685 



TABLE OF CASES. 
[The references are to the pages.] 



CXIX 



McClintock v. Loisseau 71, 158 

McClory v. Bicks 259 

McCloskey v. McCloskey 148 

McClung Drug Co. t». City 

Realty Co 610 

McClure's Appeal 510 

McClure v. Johnson 545 

V. Law • 413 

«. Raben 373, 374 

V. Trust Co 245 

McClurg's Appeal. !386, 731 

McClurg V. Crawford. . 590 

McClurkan v. Thompson 264 

McCoUom V. Morrison 636 

McComas v. Easley 600 

MeConkey v. Cookey 403 

. ' W.Smith 669 

McConnell v. Hampton 669 

McCord V. Iker. 699 

V. Ochiltree 226, 829 

V. Pik6 670 

McCormack v. Tacoma 653 

McCormick's Appeal 795 

McCormick Estate 216 

ji. Grogan 136, 341 

i». Ins. Co.< 486 

V. Malin 401 

V. Stephany 609 

V. Sypher. ." 100 

McCorquodale v. Bell 848 

Mc6ourtney v. Sloan 65 

McCowan v. Brooks. > 543 

McCowen v. Pew 625 

McCoy V. McCoy 132, 176 

McCracken v. Robison'. 412 

McCrae v. Hollis 326 

McCray v. Clark 458 

MoCrea v. Hinkson 750 

McCreary v. Gewinner _. . 120 

V. McCreary. . .' 158 

McCreight v. Foster 589, 592 

McCrockhn v. McCrooklin 206 

McCrory v. Foster 159 

McCue V. Johnston 619 

McCulloh w. Dashiell 799 

McCullom V. Mackrell 622 

McCullough's Appeal 383 

McCullough 0. Irvine 680 



MeCuUough v. Willey x424 

V. Wilson 495 

McCully's Estate 225 

McCune v. Baker 97 

W.Beit 542, 548 

McCusker v. Spier 70, 327 

McDaniiel v. Maxwell 288 

V. McCoy 394 

». Pattison 340 

P.Stroud 274 

McDavid v. McLean ., 533 

McDavit V. Pierrepoint 605 

McDermot v. Laurence 793 

McDermott v. Boyd 430 

W.Hayes 461, 462 

McDermutt w. Strong ; 808 

McDonald w. Andrews 312 

w. Beatty 483 

w. Buckstaff.. 71 

V. Mass. Hospital. . . 214 
V. McAndrew.. . .341, 369 

V. Shaw 219 

w. Tyner 369 

W.White. 860 

McDonogh'a Ex'rs w. Murdock . . 83, 
85, 87, 232, 235 

McDonough4». Saunders 789 

McDougal w. Armstrong 856 

v. Dougherty. 544 

McDowaU w. Peyton 340 

McDowell w. Edwards 295 

w. Goldsmith 344 

McDuffie V. Walker. 470 

' McEacham w. Colton 731 

McEachem w. Stewart 243 

McElfreshw. Schley. . .500, 503, 506 

McEUienny's Appeal 245, 410 

MoElhenny v. Hubert Oil Co... . 414 
McEIrath w. Pittsburg and Steu-^ 

benviUe Raihoad Co .- 79 

McElya W.Hill 351 

•McEnroe w. McEnroe 407 

McEvox. V. Bank 129 

McFadden v. Hefley 513 

w. Jenkjfns 117 

w. Robinson 352 

w. Swinerton 661, 662 

McFaddm v. McFaddin 425, 428 



cxx 



TABLE OP CASES, 



[The references are to the pages.] 



McFadyen v. Masters 468 

McFerran v. Taylor ". . .327, 338 

McGann v. La Brecque Co 738 

McGarvey v. Hall 694 

McGeary v. Brown ■ 851 

McGee v. McGee./. . . .-. 166, 202 

V. San Francisco ....... 64 

McGhee U.Bell '. . . 365 

McGibbeny v. Burmaster 619 

McGiJbbon v. Tarbox '. . 794 

McGinity v. McGinity 265 

McGinnis v. McGinnis. . 166, 278, 505 

McGirr v. Aaron .• 224 

McGoon V. Shirk 75 

McGough V. Ins. Bank 62 

McGourkey v. , Toledo & Ohio 

Central Railway Co. . 413 

McGowan v. City 286 

V. Goldberg 256 

V. McGowan 150 

V. Parish 67 

McGowen v. West 624 

McGowin v. Remington 67, 596 

McGrath, Inrer 831, 834 

McGregor v. Camden. 703 

V. Case 642 

McGuire v. Brown .^... 287 

w. Delvin '. 169' 

t).. McGowen 163 

V. Ramsey 148 

McHale v. Toole ." 133 

McHan v. Ordway 171 

McHarry v. Irwin 323 

McHendry v. Shaffer 264^ 

McHenry, In re 430 

McHenry v. Hazard 666 

McHugh V. Comity of Schuykill . 344 

w. O'Connor 131 

Mcllvain v. Assurance Co 554 

Mcllvaine v. Gethen 382 

Mclntier v. Shaw 263 

Mclntire v. Hughes 131, 602 

V. Pryor 345 

V. Zanesville 242 

Mcintosh V. Ropp 483 

Mclntyre v. Hauser 289 

V. Miller 532 

, V. Storey.. . .670, 689, 736 



Mclntyre v. Velte 255 

McKane v. Adams 643 

McKay v. Carrington 629 

V. Green 813 

McKean Gas Co. v. 'Wolcott. . . .307 

McKechnie v. Sterling 589 

McKecknie v. Hoskins 463 

McKee if. Griggs 410 

«. Higbee 698 

V. Judd 285 

e. Lamon 83, 86 

V. McKinley.. . .98, 102, 194 

. V. Phillips 621 

McKeefry v. O'Hara 491 

McKenna v. George 531, 533 

McKennan v. PhiUips 180, 203 

McKenney v. Ellsworth 461 

McKenzie v. Donnell. 394 - 

v. Perrill 463 

V. Sumner 97 

McKeowD v. Allen . .• 420 

V. Collins 574 

McKibben v. Doyle : 328 

McKim V. White Hall Co 314 

McKinley t).,Hessen. . '. 622 

u.» Williams 412 

McKinney v. Hensley. 398. 

V. Rhoads 130 

McKinnon-Young Co. v. Stock- * 

ton etal 868 

McKleroy v. Musgrove 789', 792 

McKnight's Ex'rs v. Walsh 242 

McKnight v. Robbins 598 

V. Thpmpson 351 

McKuen v. Serody 628 

McLain v. School Directors 228 

McLarren v. Brewer , . 159, 160 

McLaughlin v. Att.-Gen 227 

V. Equitable Assur- 
~ ance Society . . 628 , 

V. Thomas 444 

McLauren v. Wilson 494 

McLaurie v. Barnes 605 

McLean v. Fleming 345 

V. Maloy 406 

McLearn v. McLellan 673 

McLellan v. Walker 289 

McLeod V. Evans 162 



Table of cases. 

[The references are to the pages.] 



CXXl 



McLoud V. Roberts 564 

McMahan v. Kimball 777 

McMahon v. Fawcett 531, 548 

W.Gray 278 

V. North Kent Iron- 
works Co... 862, 86r 

McManus v. So.,Ry. Co 691 

McMichael v. Webster 35Ct 

' McMillan v. Arthur ._ .' 412 

V. Kuehule 704 

«. McMillan 68 

V. Richards 254 

McMoran v. Fitzgerald 698 

McMorris v. Crawford 591 

McMullen v. Beatty 188 

^ V. Cooper 860 

V. Hoffman... 72, 73, 356 

ti. Vanzant 598 

McMulligal V. Aylor 427 

McMurtrie v. Bennett 608 

McNair v. Lot 255 

McNairy v. Eastland .' 808 

McNamara v. Bohn . . '. .'. . . 622 

McNeil V. Magee 600 

». Tenth Nat. Bank 293 

McNeill V. Bradley 856 

V. Reid 785 

McNeills V. McNeills '. 542 

McNess V. Swaney 260 

McNew V. Toby 65 ' 

McNutt V. Nellans. 613 

V. Strayhom 801 

McPherson v. Berry 4S3 

V. Haywaid .266 

V. Shade,. 613 

». Watt 407 

McQueen v. Burhans 443 

V. McQueen 500 

McQuitty V. Wilhite 602, 622 

McRea v. McRea 76 

McRee's Admrs. v. Means . . 136, 139 
'McRejTiolds v. McRejrnolds. . . . 787 

McVay v. McVay. 118 

McVey v. Brendel 720 

McWilliams v. Doran 394 

V. Gough 525 

«. Webb 295 

Mead, /rare 132 



Mead v. Bunn 350, 365 

V. Burk 865 

V. M,OTse 312 

V. West Chester Fire Ins. 

Co - ; 326 

Meade ». King 860 

' Meadow Valley v. Dodds 727 

Meason v. Kaine 608 

Measures Bros. v. Measures . : . . 732 , 

Mechanic's Bank v. Seton 594 

V. Stone 530 

Mechanics' Ins. Co. v. Hoover. . 655 
V. Schmidt. 655 

Meckley's Estate 317 

Meder v. Norton 345 

Medical Society v. Gilbreth.321, 742 

Medill V. Snyder S06 

Medlin t)..Buford . / 344 

Medoff V. Vanderaaal 615 

. Meech v. Allen 799 

Meeder v. Provident S. L. Assur.- 

Soc ■ 497 

Meehan v. Forrester 257 

V. Owens. .' 611 

V. Valentine 785 

V. Williams 463 

Meek v. KettleweU. ... v ... . 127, 128 

V. Perry 404 

Meeker v. Larsen? 547 

Meekins v. Branning Co 518 

• Meeting St. Baptist Soc. v. Hail. 226 

Meetz V. Mohr 74 

Megargee v. Naglee 100, 103 

Megibbem v. Perin 614 

Mehaffey's Estate Ill 

Meholin v. Carlson 444 

MeidUng v. Trefz. .; 605 

Meier v. Bank ...;■,., 483 

«. Hess 295 

t). Hilton 471 

Meigs V. Dimock i. . . . 575 

Meily v. Wood 791 

Meland v. Youngberg 364 

Melcher v. Burger 500 

Melick V. Cross 625 

v., Pidcock 102 

MeUn V. Woolley 625 

Mellen v, MoUne Iron Works. . . 859 



cxxu 



TABLE OF cases; 



[The references are to the pages.] 



Mellish V. MeUish 333 

V. Robertson . . . ., 318 

Mellon V. Mulveiy . . : 427 

V. Reed 515' 

Melville v. Waring 600 

Melvin v. Lisealy 669 

Memphis Institute v. Keeley ... 720 
Memphis Sav. Bk. v. Houchens 79 

Menagh v. Whitwell 802 

' Mendes v. Guedalla 248 

V. Mendes 836 

Mendocino (Bank of) v. Baker. . 464 

Menendez v. Holt 345 

Menges v. Oyster 317 

Menken v. Brinkley Ill 

Menter Co. v. Brock 730 

Mercantile Co-op. Bank v. Brown 492 
Mercantile Nat. Bank v. Mayor, 

of New York 669 

Mercantile Trust Co. v. Southern 

States L. & T. Co 809 

Merced Bank v. Crocker Water 

Co 540 

Merced v. Fremont 684, 687 

Mercer v. Morgan 265 

V. Newsom 243 

D.Stark 119 

Merchant v. Logging Co 791 

Merchants' Bank v. Weill 296 

Merchants' Nat. Bank v. Green- 
hood 808 
V. Paine. 809 

Meredith v. Heneage 141 

Merigan v. McCJonigle. 124 

Meriweather's Adm'r v. Herran . 286 
Merriam Co. v. Sjmdicate Co. . . 722 

Merriam v. Boston R. Co 494 

V. Hassam 113 

V. Victory Mining Co. . 559 

Merrill v. Houghton •; . 583 

■p. Humphrey 74 

V. Wilson 346 

Merrillat v. Plummer 350 

Merriman «. Cover 385 

V. Munson Ill, 128 

V. Russell 782 

Merritt if. Brown 627 

V, Ehrman .' . 750 



Merritt v. Lambert ,407 

V. Morris 365 

V. Wassenich 607 

Merryweather v. Moore. . . .674, 675 
Mersick v. Hartford R. R. Cx. . 561 

Mortens v. Schlemme 495 

Mesmith v. Drum 289 

Messeck v. Supervisors 669 

Messer v. The Fadettes 286, 719, 720 
Messersmith v. Sharon Sav. Bank 810 

Metcalf V. Cook 189, 191 

Metcalfe's Trusts, In re 410 

Metcalfe v. The Archbishop of 

York -. .,... 284 

Methfessel's Extr.. v. Atlantic 

Trust Co 293 

Methodist Church v. Remington 

210, 217 

V. Wood 159 

Methodist Episcopal Church v. 

Jaques , . .159, 809, 845 

Metier v. Metier 643, 726, 750 

Metropolitan Bank v, Godfrey. . 322 

V. Perry. . . . 152 

V. Taylor. . '. 183, 

191 

Metrop. Exhib. Co. v. Ward 730, 733 

Metrop. Ins. Co. v. FulleF. 287 

Metzgar v. Metzgar 298 

Metzger v. Emmel. . . 7 553 

Meurer's Appeals 838 

Mevey's Appeal 539 

Mexborough (Earl) v. Bower. . . 637 

Meyer Land Co. v. Pecor 610 

Meyer v. Garthwaite 813 

V. Johnston 867 

V. Town of Boonville. . . . 670 

V. Yesser 72 - 

V. Wells 74 

MeyerhofF v. Daniels 367 

Michener v. Cavender 397 

Michigan State Bank v. Ham- 
mond 312 

Michigan Trust Co. v. Comstock 421 
V. McNamara 66(] 
Miohoud V. Girod. . 173, 243, 344, 443 
Micklethwait v. Micklethwait. . . 683 
Middleton v. Greenwood 253 



TABLE OF CASES. 
[The references are to the pages.] 



cxxm 



Middletown v. Newport Hosp. .' . 311 

Middletown Bank v. Jerome. . . . 297 

Middlesex Co. v. Pa. R. R. Co. . . 690 

Midkiff V. Colton 304 

Midland Great Western R. Co. 

». Johnson . . . 318 

Midland Press v. Compton 739 

'Ry. Co. !). Taylor.... . 596 

Milburn v. Michel 491 

Mildred v. Austin .-: . 256 

Miles V. Dover F. Iron Co. 600, 754 

w. Ervin. ., 407, 470 

Miles V. Lefi... . . .' 482 

V. Lingerman. . .^ 494 

t). Shreve. . .' 327, 334 

V. Stevens 323, 606 

V. Wheeler 173 ' 

Milhau V. Sharp 736 

MilhoUand v. Whalen 124 

Milhous V. Sally 70 

Milkman v. Ordway^ 754 

MiUti. Hm...r„ 166 

Mill and Lumber Co. ». Hayes. . 389 

Millar v. Taylor 710, 714 

Millard v. Green 169 

Millard's Case '. 89 

Millbourne v. PhilUps 547 

MiUer's Appeal 374, 490, 548 

^Miller's Ex'rs v. Commonwealth 215 

Miller, /rare 000 

Miller and Bowman's Appeal. . . 513 

Miller v. Ahrens 860 ^ 

D.Albright, 573, 577 " 

0. Aah 459 

V. Atkinson 214 

». Ball :.... 619 

V. Bingham 194 

V. Brown '. . . 190 

V. Chetwood 617 

V. Chittenden 226 

V. Conmionwealth. ..,...• 513 

W.Cook 376, 553 

V, Davidson 808 

V. Edwards * . . , 160 

V. Enterprise Co 72 

V, Freeman '. . . 787 

«. Gillispie 422 

V. Gorman 668 



Miller v. Grandy 656 

V. Green 260 

V. Harwell 564 

V. Henderson 441 

v.Henlan 605, 606 

V. Hoeschler 685 

• V. Jones 789, 790 

V. Kent 761 

ti. Klein 729 

V. Lincoln 268 

V. Lorentz .-. 619 

w. McCan^. 647, 

!). McLin 158 

V. Meetch ...143 

ti. Miller..^ 74, 150 

V. MiUer's Admr 180 

V. Morris 744 

w. Newton 190 

V. Porter 214, 217 

w. Portrait Co 732 

V. Powers 328 

D.Russell 761 

V. Sharp 619 

*;. Sherry 78, 471, 809 

D. Simonds 405 

D. Slupsky., 160 

■ D. Smith 266 

D. Springer 505 

D, Stark 548 

V. Sterririger 396 

V. St. Louis R. Co 324 

D. Stokely 154 

• ». Stout 550 

D. Stuart 327 

D. Thatcher ■. 115 

V. Tjexhus 607 

V. U. S. Casualty Co 62 

t), Voorheis 350 

II, Wheelan 274 

D. Willett 313 

D. WilUamson 189 

Miller Co. v. Klovstad 379 

. Millett D. Davey. . '. 682 

Millhiser v. McKinley 796 

Millican v. MiUioan. . . .^ 404 

MilUgan's Appeal 160, 539 

Milliken d. Bailey 268 

V. Dravo 620 , 



CXXIV 



TABLE OF CASES. 
[The references' are to the pages.] 



Milliken v. Ham 149 

Milling Co. v. Barker 760 

w. R.Co 685 

Mills w. Brady :.... 810 

^ V. Davison 231 

V. Farmer 213^ 224 

V. Fox 492 

V. Harris 514 

V. Haywood 621 

V. Hoffman 497 

B.Hyde 531 

V. Johnston 97 

V. Lockwood 325 

W.Miller 318 

V. Morris 749 

' V. Newberry 140 

V. Sigmon 642 

V. Watee Co 641 

Millsapps V. Pfeiffer 62 

Millsaps V. Shotwell 607 

Milroy v. Lord. . .123, 125, 126, 294 
Miltenherger v. ' Logansport R. 

Co 560 

Milton !). Kite 599 

Milton Dairy Co.»v. Ry. Co 653 

Milwaukee v. Koeffler 668 

Milwaukee Electric Ry. & L. Co. 

V. Bradley 658, 667 

Milwaukee & M. R. Co. v. M. & 

W. R. Co 285 

Milwaukee R. R. Co. w. Soutter. 863 
Mims V. Macon, etc., R. R. 

Co 574 

Minah Consol. Min. Co. v. Bris- 
coe., 571, 573 

Mincey v. Foster 610 

Miner v. Hess 334 

V. Miner , 832 

Mineral Water Society v. Booth". .385 

Mines Co. v. Ridgely 542 

Minet v. Morgan 847 

Minge v. Clark 59 

Minick v. Reichenbach 255 

Minini v. Cox 242 

Minnig's Appeal 686 

Minns v. BilUngs.. . . , .20d, 213, 214 

Minor V. Ferris 825 

Minors v. Batteson 143 



Minot V. Baker 221 

«. MitcheU 148 

Minshaw v. Jordan 750 

Minter v. Carr 270 

Mintum v. Baylis .609 

V. Farmers' Loan and 

Trust Co 647 

V. Seymour 123 

Minzesheimer v. Doolittle. 379 

Miskey's Appeal 129, 404 

Missionary Soc. v: Eells 340 

V. Humphreys. . 231 

Miss. ife.Mo. Co. V. Ward 707 

Mississippi (State of) ». Johnson 

64, 671 
Missouri Hist. Soc. v. Acad, of 

Science 219 

Loan Co. v. Federal 

Trust Co 356 

Pac. Ry. Co. v. Cullers 287 

Mitchell V. Reynolds 384, 385 

MitcheUIs Case. 488 

Mitchell V. Aten ' 455, 469 

V. Baldwin 751 

».. Bunch :.78, 593 

V. PuUington 747 

V. Hayne 662 

V. Homfray 400, 409 

t>. Jones-. = .....'. 371 

V. Manufacturing Co.. . 760 

V. McDougall 358 

/ ' V. Mitchell 136 

V. N. W. Mfg. & Car. 

Co : 662 

V. Redus. 620 

V. Shaneberg 574 

B.White 625 

V. Winslow 281, 283 ' 

Mitchem v. Georgia Cotton Oil 

Co 760 

Mitford ti. Reynolds 219, 235 

Mizner v. Kussell 348 

M.,' K. & T. Trust Co. v. Krum- 

seig. . .» 377 

Mbale ». Buchanan 617, 620 

Moberly v. Trenton 313 

Mobile V Louisville & Nashville 
Railroad Co .',... 692 



TABLE OF CASES. 
[The references are to the pages.] 



CXXV 



Mobile & Mont. Ry. Co. v. Ala. 

Md. Ry. Co 689 

Mockridge v. Mockridge 207 

Modem Baking Co. v. Orringer .- . 148 

Moeller v. Moore , 260 

V. Poland. '. . . 601 

Moers v. Moers.'. '. 649, 653 

Moeser, Admr., ti. Schneider. . . . 291 
Moffet, etc., Go. v. City of 

Rochester 326, 327 

t). Farweli: 274 

Moffit V. Adams 484 

V. McDonald 159 

Mogg V. Hodges 567 

Moggridge V. Thackwell.. . .220, 221, 
222, 224 
Mogul S. S. Co. V. McGregor. . . 386 
Mohawk Bridge Co. v. Utica & 

Schenectady R. Co '. 701 

Mohr V. Byrne. . 297 

Molineaux v. Enered 437 

MoUer, In re , -. 213 

Molton V. Martin 189 

Momsen v. Noyes 530 

Monahan v. Monahan .- 71 

Monell V. Monell 247 

Moneta v. Hoffman. -344 

Money V. Ricketts 463 

Mong V. Roush 225 

Monks V. Belden 492 

Monnin v. Beroujon 326 

Monongahela Coal Co. v. Jutte 

386, 387 

Monroe v. Smitk 425 

Monroe Bank v. Catlen . . . . 320 

Montacute v. Maxwell 623 

Montague, Ex parte 289 

Montague (Lord) v. Dudman 

653, 484 
Montana Nat. Bank v. Schmidt 

742 

Montefiore v. Brown 466 

Montgomery v. Chadwiok . . 255, 268 

V. Dant 762 

V. City Council . . . 545 

V. Milliken. 513 

V. Montgomery. . . 153 
Montgomery Co. v. Charles .... 653 



Montgomery Power Co. v. Mont- 
gomery Traction Co 609 

Montgomery Traction Co. v. 
Harmon 811 

Moody V. Keller 120 

W.Wright 283 

Mooers v. Smedley. r. , . . . 669 

W.White 764 

Moon V. Crowder 603 

Mooney v. Byrne 259 

«. MiUer ! . . 352 

Moore v. Allen 455, 620 

V. Appleton .' 538 

». Atlanta , 639 

V. Beason 256 

V. Blagge: 771 

V. Brecken 171 

V. Browne 646 

V. Burrows 591 

V. Campbell. 117 

w. Cary ' 572 

V. Cleghom 121 

i-. Cord ,. 861 

V. Crawford 591 

V. Crofton ...131, 602 

W.Curry 729, 7Sl 

V, DonahoQ 562 

V. Galupo 610 

w. Gulley 648 

w. HalUday ,..686, 687 

V. Hamilton . 240 

V. Harrisburg Bank 274 

V. Henderson 482 

V. Holcombe -. . . . 298 

V. Isley 531 

V. Jaeger 78 

V. Jennings 687 

II. Lyttlev 65 

V. Moore 127, 154, 

201, 395, 531, 542 
V. Norristown Trust Co. . 375 
V. North Western Bank 

294 

W.Norton 637 

W.Olive 274 

V. Robbins 518 

w. Shook 318, 320, 324 

V. Simonson 171 



CXXVl 



,TABLE OF CASES. 



[The references are to the pages.] 



Moore v. Small 620 

V. Somerset 212 

V. Stinson 194 

V. Taylor. 163, 668 

«. Titman 268 

». Tuohy. 612 

f. Valda 870 

». Wade 263, 265 

V. Williams 160 

V. Young 536 

Moorer v. Kopmarm 599 

M. O. P. V. Merriman 660, 662 

More V. Bennett : . . 387 

B.Churchill 69 

V. Freeman 204 

, Morehead v. Eades 352 

Morehouse v. Cotheal 680 

Morel V. Cornell Ill 

Moreland v. Atchison .322, 357 

Morenhout v. Higuera. 767 

Moreton v. Harrison 573 

Morey v. Grant 866 

■ V. Herrick 150 

Morgan v. Bank of North Amer- 
ica 278 

W.Bell 321, 606, 615 

V. Boone 171 

V. Dev. Co 660 

V. Dunwoody. ........ 860 

D.Eaton 590 

V. Forbes 627 

V. Malleson 126 

V. Minott. . ^. .' 406 

». Morgan 108 

V. Mueller 768 

V. Railroad Co 483 

w. Shinn 266, 747 

V. Skidmore 795 

V. Smith 656 

V. Wordell 550 

Morgan (County of) v. Allen ... 810 
Morgan Envelope Co. v. Wal- 
ton 722 

Morgan's Estate 110 

Morgan's,- etc., Co. v. Tex. Cen- 
tral Ry. Co 266, 545, 561 

Morgenstem v. Ins. Co 486 

Moriarty v. Martin 504 



Morice v. The Bishop of Durham 

141, 164, 214, 218, 227 

Morison v. Moat 674 

MorWy V. Loughnan 399 

V. Rennoldson 381, 382 

B.White 667 

Mormon Church Case 222, 223, 

224, 236 
Momington (Coimtess of) o. 

Keane ' - . . 284 

Moroney's Appeal 272 

Morrell v. Cowan 179 

B. Gas Co 642 

Morret v. Parke 271 

Morrill w. Noyes. .... ^281, 284, 581 

V. Skinner. 259 

w. Weeks 308, 309 

Morris v. Cohnan 386 

B.Edwards 217 

V. Gaines 620 

/ B. Herndon 485 

B. Kearsley 786 

B. Lewis 602 

B. McCoy 308 

V. McCulloch ?..... 287 

B. Morris 237, 364 

B. Norton 379 

B. Peckham 786 

'. Penrose 326 

B. Posner. 365 

B. Reigel. .- 148 

B. Remington 80 

B. Whitley. 760 

B, Ziegler 427, 474 

Morris Canal Co. b. Emmett . . . 365 

Morris Run Coal Co. Case 388 

Morris Run Coal Co. v. Barclay 

Coal Co 387 

Morriso b. PhiUiber 37i 

Morrison b. Fletcher 500 

. B. Herrick 621 

V. Hershire 74 

B.Kelly 470 

B. Lincohi Savings Bk. 162 

V. McLeod 396 

0. Moat. . : 674 

w. Wilson 494 

Morrissey b. Williams 353 



TABLE OF CASES. 
[The references are to the pages.] 



CXXVll 



Morrow v. Brenizer 515, 521 

Morse v. Adams 572 

V. Martin -..;.. 331 

V. Morse 386 

t>. Staber 614 

». Stevens 660 

». Whitcher '255 

Morse Co. v. Lowney Co 723 

Morss V. Elmendorf 626 

Mortgage Co. ». R. R. Co 868 

Mortimer v. Bell 354 

V. Capper 329 

ti. Shortall 746 

Mortland v. Mortland. 342 

Mortlock 0. Buller 607, 615 

Morto^i's Estate 27, 856 

Morton v. Barrett 103 

D.Dillon. 560 

V. Grafflin 554 

V. Jones 471 

_ V. Lumber Co 548 

V. Morton 723 

■ «. Naylor .- 289 

V. Williamson 283 

Mosby V. WaU. . 617 

Moseley v. Bogy 498 

V. Boush 300 

V. Gainer 420 

V. Smiley 210 

Moser v. Libenguth 748 

Moses V. Grainger 582 

0. l^cClain !....609, 615 

V. Murgatroyd. . 130, 160, 548 

V. Ranlet 554 

Mosher v. Sinott 409 

Mosier's Appeal .- . . .543, 548 

Moss V. Hanson 615 

V. Moss 157 

Motley V. Darling, etal 596 

Mott V. Clark 297 

V. Harrington 407 

V. Mott 405 

V. Underwood 681 

Motte ». Bennett 711 

Moulton V. Cornish 266 

V. Warren Mfg. Co. . . . S95 

Moultrie v. Wright. 150 

Mounce v. Byars 575, 579 



Mount V. Loizeaux 365 

Mount V. Potts 539, 565 

Mountain Lake Park Assoo'n v. 

Shartzer. 647 

Mountfort, Ex parte 832 

Mount Holly Co. v. Ferree. . 293, 294, 

660 
Mount Hope A^ssn. i;. New Mount 

Hope Assn 685 

Mount Joy (Bank of) v. Gish. . . 291 

Mount Zion v. Gillman 659 

Movan w^Hays 116 

Mowdayw. Moore. . . .688, 699, 701 

Mower v. Kip 799 

V. Orr 514 

Mowry's Appeal 482 

Mowry v. City of Providence. . . . 217 

V. Todd ' 292 

Moyer's Appeal. . 618 

Moyle V. Moyle 239 

Moyle Finch's Case 91 

Moynihan v. Rockhill 286 

Mucklow V. Fuller 247 

Muderspaugh Estate 518 

Mudsill Mining Co. v. Watrons 

350, 752 

Mueller v. Eau Claire Co 670 

Muldrick v. Brown 685 

Muldrow V. Muldrow 592 

Mullen V. Doyle 175 

V. McKim 630 

w. Walton ■.->.. 443 

V. Wilson 427 

Muller V. Buyok 396 

V. Dows 79 

Mulligan v. Albertz 601, 607 

MuUiken v. Graham .......... 460 

MuUings V. Trinder 614 

Mullins V. Shrewsbury 491 

MuUis V. Nichols '. . . 732 

Mullison's Estate' 298' 

MuUong V, Schneider 156 

Mulvany v. Kennedy 686 

Mumford v. Am. Life Ins. Co. . . 74 
Mumpowert). Castle... 150, 157, 368 

Munoey v. Joest 484 

Muncie Gas Co. v. Muncie 655 

Munden v. Harris 717 



CXXVIU 



TABLE OF CASES. 
[The references are to the pages.} 



Mundorff v. -Wickersham 367 

Mundy v. Brooks 61 

V. Mundy 775, 779 

Munford v. Green's Adm'r 265 

V. McVeigh 377 

Munro V. Callahan 648 

Munsell V. Loree 609 

Munson v. Hallowell 345 

V. Munson 861 

Murdoch v. Elliott 249 

V. Finney 295 

Murdock and Dickson, In r^ As- 
signment of 242 

Murdock'jg Case ^82 

Murdock v. Clarke r. . 268 

Murphy's Estate 137, 213, 228 

Murphy v. Clayton 150 

V. Delano, .n Ill 

V. Hubert 115, 154 

V. Lincoln 685 

V. Nathans 156 

V. Robinson 273 

V. Wilmington 648 

Muriray v. Ballon 457, 470 

^ «i Barlee 186,~'187 

V. Jones 494 

V. Lord Elibank 198, 199 

w. Lylbum....297, 471, 472 

V. Murray '. 796 

V. Railroad Co 613 

t). Rugg 493 

V. Superior Court 866 

». Tolman 358 

Murrell v. Goodyear 615 ' 

Murrill v. Neill 795, 798 

Murtha v. Curley 630 

Musgrave v. Dickson 541 

Muskingum (Bank of) v. Car- 
penter 579 

Musselman v. Kent 71 

V. Marquis 684, 686 

V. Myers 152 

Musselshell Cattle Co. v. Wool- 
folk 685 

Musser !)^ Oliver 493 

Mussey p. Shaw 118 

Musson V. Trigg 189 

Mussoorie Bank v. Raynor 136 



Mutlow V. Bigg. 524 

Mutual Co. V. Hilton 461 

Mutual Ins. Co. v. Seidel 367 ' 

Mutual Life Ins. Co. v. Griesa . . . 844 

V. Nicholas. 265 

Mutual Oil Co. v. Hills 595 

M. W. A. V. Binder 644 

Myers v. Board of Education. . . 161 

V. Hawkins. ., 687 

V. Miller 541 

W.Myers 153, 161 

«. Steel CofT. 733 

Mylin v. King 768 

My Maryland Lodge »v Adt. . . . 694 

N 

Nab ». Nab 117 

Nabours v. Cocke 318 

Nace V. Boyer 393 

Nagengast v. Alz 149 

Nagle's Appeal 521 

Nagle ». Newton 630, 754 

V. Robins 237 

Naglee's Appeal 98, 102 

Naglee's Estate . . . . ' 144 

Naglee v. IngersoU 511 

Nairn v. Prowse 574 

Naldred v. Gilham 129 

Nalle V. Parish. 548, 549 

Nance v. Nance 240 

Naimey v. Morgan 125 

Nantes v. Corrock 188 

Napier v. Darlington 589 

Nartzik v. Ehman 862 

Nash V. Burchard 762 

V. Hospital Co 354 

V. Milford 591 

V. Minnesota Title InS. & 

Trust Co 351 

V. Title Co 361 

Nason v. Barrett 595 

Nass V. Vanswearigen 482 

Nassau Hotel Co. v. Bamett 287 

Natal Investtoent Co., In re 296 

Natalie Anth. Coal Co. v. Ryon. 672 

Nat. Bank v. Ally 71 

National Bank v. BieUuirz 492 



TABLE OF CASES. 
[The references are to the pages.] 



CXXIX 



National Bank v. Exchange Bk. , 556 

». Ins. Co 162 

V. Kimball 669 

V. Mechanics' 

Bank 558 

V. Sprague 799 

V. State 286 

of Deposit V. 
Rogers. .76, 580 
of El Paso ». Fink 286 
of West Grove v. 

Earle 849 

Nat. Biscuit Co. v. ConsoUdated. 288 
National Cash Regsiter- Co.,' 

In re 569 

National Cash Register Co. v. 

Shurber 496 

National Circle v. Nat. Order 726 

National City Bank v. Hotch- 

kiss 163 

Nat. Granite Bank v. Ts^ndale. . 494 

Nat. Life Ins. Co. v. Ayrea 547 

Nat. Park Bank».,Goddard 644, 659 
National Protective Ass'n o. 

Cummings 693 

National Provincial Bank of 

England v. Marshall.. , . 730 

Nat. Tel. News Co. '». West. 

Unioii Tel. Co 715 

Nat. Tube Co. p.Ballou 808 

National Valley Bank v. Han- 
cock 285, 420 

Nault,t). Palmer 653 

Nrfylor V. Foreman Lumber Co. . 67 

V. Shelton. 599 

V. Thomas 173 

Nazro v. Merchants' Ins. Co. . . . 737 

Nazum v; Nazum 60 

Neal's Appeal 194 

Neal V. Black. . . .' 128 

V. Gregory .^621 

V. Parker 586 

V. Reynold^. 323, 339 

Nease v. Ins. Co 60 

Neathery v. Neathery 150 

Neblett v. MacFarland 339 

Nebraska L. & T. Co. v. Ignow- 
ski.... 742, 744 



j ' Nebraska Moline, etc., Co. v. 

Fuehrmg 292 

Nebraska Power Co. v. Koenig 

169, 409 

Needles v. Needles 276, 373 

Neel's Estate 513 

Neff's Appeal 246, 554 

Neff P.Miller 545 

Negaunee Iron Co. v. Iron Cliffs 

Co 514, 685 

Negley v. Lindsay 343 

Negroes Chase et al. v. Plum- 

mer 140 

Neil V. Cummings 352 

Neilson v. Fry 544 

V. McDonald 338, 396 

Neimcewicz v, Gahn 536 

Nelson v. Allen 760 

V. Berkner. 441 

!). Gibe 607, 625 

V. Ha'gerstown Bank .... 630 

V. Hamner 65 

V. Harwood 594 

p. McKee 550 

'v. Pinegar 682 

V. Stocker 495 

Nelthorpe v. Holgate , 625 

Nesbit V. Brown .\ . . . 308 

V. Moore .- 591 

p. St. Patrick's Church.. 759. 

Nesbitt p. Stevens. 116, 120 

Nesmith p. Drum 289 

Nesne a. Sundet 721 

Ness V. Davidson 513 

Nester p. Continental Br. Co. . . . 386 
Nettleton p. Ramsey, etc. Co.. . . 550 

Neumann's Estate, '. . . . 513 

Neureuter v. Scheller 405 

Nevada Power Co. v. Hamilton. 668 

Nevanas v. Walker 386 

Neve V. Pennell 469 

Neves v. Scott 24, 25, 105, 106, 204 

Nevill V. SnelUng. . _. 372 

Nevin (Violet), Inre. : 834 

Nevius V, Dunlap 326 

New p. Bonaker 90, 226, 235 

. p. Hunting 130 

Newark Plank Road Co. v. Elmer 737 



cxxx 



TABLE OF CASES. 
[The references are to the pages.] 



Newberry, In re 834 

Newberry v. French 613 

V. James 674 

V. Williams 812 

Newbold v. Newbold r .254, 255 

New Boston, etc., Co. v. Potts- 

ville Water Co.' 698 

New Britain v. N. B. Tel. Co . . . 308 
New Bru^swlck Railway Co. v. 

- Cbnybeare 367 

New Brunswick, etc.. Railway 

- Co. V. Muggeridge 353 

Newburgh Sav. Bk. v. Town of 

Woodbm'y 317 

Newby v. Fox 553 

V. HiU 290 

V. Skinner 519 

New Castle (City of) v. Raney. . 699 

Newcomb v. Bonham 260 

v. Boston Pro tec. 

Dept 219 

> Newcomer v. Kline 325 

V. Scriven Co 724 

New Domain Co. v. Oil Co . 491 

Newell V. Nixon 484 

Newells v. Morgan 146 

New Eng. Awl & Needle Co. 
V. Marlborough Awl & Nee- 
dle Co : 723 

Newham v. May 341 

New Hampshire Bank v. Wil- 

lard 272 

New Home Sewing Machine Co. 

V. Fletcher 667 

New Idea Pattern Co. v. Whitner 732 

Newis B.'Topfer 369 

New Jersey State Dental Society 

V. The Dentacura Co 674 

New Kirk v. Stevens 407 

Newlin v. Freeman 189 

New Lincoln Hotel Co. v. Shears 283 

New London v. Brainerd 670 

Newlove v. Penhock 58 

Newman v. Albord 722 

V. Chapman 471, 472 

V. Ins. Co 662 

V. James 182 

V. Neel 808 



Newman v. Newman 69 

V. Payne 406 

V. Rogers 629 

t). Smith.. 356, 410 

V. Willetts...805, 807, 808 

New Market v. Smart 248 

New Memphis Gas Co. t). Cases. 409 

New Orleans v. Gaines 541 

New Orleans Assn. v. Le Breton, 272 
New Paltz Co. v. Central Ry. 

Co 686 

Newport (City of) v. Masonic 

Temple Ass'n 213 

Newport Water Works v. Sisson 523 
New Sombrero Phosphate Co. v. 

Erlaflger. 413 

Newsom v. Bowyer. 202 

Newson v. Starke 225 

New South B. & L. Ass'n v. Reed 419 

Newstead v. Searles. . 422, 434 

Newton,- In re 834 

Newton v. Bronson 593 

V. Kemper 312, 313 

w. Marsden 383 

V. Newton 428 

V. Swasey 591, 619 

New York City,w. Pine 68, 754 

New York Guarantee Co. v. 

Memphis Water Co 299 

New York & New Haven R. Co. 

V. Schuyler 294, 353 

New York, Ont. & Western Ry. 

Co. V. Davenport 860 

New York Rubber Co. v. Roth- 

ery 492 

N. Y. Steamboat Co. v. N. J. 

Steamboat Co 554 

New Zealand Banking Co.; In re 570 

Neyland v. Bendy 153 

Niagara Fire Ins. Co. v. Scam- 

mon. . 749 
V. Adams 61 

Nibert v. Baghurst 621, 651 

Nice's Appeal 100, 469 

Nicholls V. Danvers 202 

Nichols V. Cabe 265 

V. Crosby 482 

«. Eaton 112 



TABLE ffF CASES. 
[The references are to the pages.] 



CXXXl 



Nichols V. Levy 110 

V. Newark Hospital. . . . 225 
V. Waukesha Canning 

Co...'..... ,70 

V. Williams 609 

Nickell V. Handly 193 

Nickerson v. Mass. Tit. Ins. 

Co :....455, 489 

Nickolson v. Knowles 661 

NicoU (William), In re...- ; 836 

Nicoll V. Mumford ■. . 130 

V. Trustees of Hunting- 
don 659 

Niederer v. Niederer. . .-. 278 

Niehans v. Shelter 260 

Niemeyer v. L. R. June. Ry 736 

Nightingale v. Goulburn 235 

w. Hidden 181 

Niles V. Graham -. 741 

V. Mathusa 295 

Nimmo v. Davis 373 

Nims V. Gilmore i 653 

Niquette v. Green 608 

Nisbet V. Smith. 637 

Niven v. Belknap 483 

Nix V. Bradley 183, 192 

Nixon's Appeal 152 

Nixon V. Rose 182, 192 

Noakes & Co., Ltd., v. Rice 262 

Noble's Estate. . 242 

Noble J). Graham 261 

V. Grandin 78 

V. Jackson 242 

V. Learned ^ . . . . 129 

V. Moses 404 

W.Noble..' 169 

Nobles b. L'Engle. 605 

Nocton V. Ashburton 406 

Noel's Exrs. v. GiU 747 

Noetling v. Wright. ^ 352 

Nokes w. Gibbon 311 

Nolan V. Snodgrass 606 

Nolan Bros. Shoe Co. ». Nolan.. 722 

Nonotuek Silk Co. v. Flanders. . . 162 

Noonanv.Lee ' 24 

Norcross v. Widgery ' 470 

Norcum v. D'CEnch 330 

Norcutt V. Dodd 423 



Nordenfelt v. The Maxim-Nor- 
denfelt Guns and Am. Co., 

Ltd ,...385, 386 

Norfleeti). Beall 410 

Norfolk and West. R. R. Co. v. 

Perdue 482 

Norfolk's Case (Duke of) 230 

Norfolk, etc., Hosiery Co. v. Ar- 
nold 344 

Norfolk Trust Co. v. Marye 637 

Normal School v. Cooper 642 

Norman v. Burnett 120 

V. McMillan 482, 483 

Norris's Appeal 242, 782 

-NorristJ. Clark ...501, 603 

^ V. Greenville 459 

V. Haggin 443 

». lie 472 

V. Loomis 214 

V. McLam 265 

V. Tayloe 400, 416 

V. Wilkinson'. 578. 

North V. Earl of Strafford 783 

B.Peters •. 63 

V. Turner 287 

». Valk 518 

North American Coal Co. v. 

Dyett 650 

Northampton (Marquess of) v. 

PoUock 260, 262 

Northampton Co. v. Lafayette 

Coll... .'. 215 

North Baltimore Build. Ass'n v. 

Caldwell.. 173, 416 

North British and Mercantile 

Ins. Co. V. Lathrop 58, 668 

North Cheshire & Manchester 
Brewing Co. v. Manchester 

Brewing Co 721 

North Chicago Mill Co. v. St. 

Louis'^Co. 647 

Northeutt v. Turriey 655 

North Eastern R. Co. v. Mar- 
tin.... 761 

North Georgia' Mining Co. v. 

Latimer 599 

North Jersey Street Ry. Co. v. , 
South Orange 312 



CXXXll 



TABLE OF CASES. 
[The references are to the pages.] 



Northern Central Ry. Co.'s Ap- 
peal.' , 737 

Northern Cent. Ry. Co. v. Wal- 
worth 609, 610 

NorthS-n Counties Ins. Co. v. 

Whipp ,...." 679 

Northern Pac. R. R. Co. v. Clark. 669 
V. Whalen. 690 
Northern Pacific Ry. Co. v. 

County 669 

Northern Pao^ Ry. Co.^ v. Van 

Dusen 64 

Northern -Ry. a. Olden- 
burg ,': 703 

Northerp Trust Co. v. Healy. . . 530 
Northwestern Iron Co. v. Cen- 
tral Trust Co 808. 

Northwestern Land Ass'n v. 

Grady 409 

North Western Life Ins. Co. v. 

Montgomery 360 

Northrip v. Burge. 117 

Northrop v. Finn Co 425 

Norton v. Boyd 666 

V. Brink 149 

V. Coons , 532 

». Leonard 101 

U.Norton 397, 405 

V. Soule 544 

u. Tufts 485 

V. Woods 647 

Norwich v. Hubbard 258 

Norwich Yam Co.'s Case 537 

Norwood V. Norwood. . 272, 544, 771 

Nott V. Gundick 771 

Nottage, In re 213 

Nottidge V. Prince 394 

Nourse v. Prime 764 

Novello V. Sudlow 714 

Noyes v. Anderson 312 

W.Clark 3^11 

V. CraiWord .' 472 

». Ross 796 

N. R. Constr. Co., in re 545 

Nugent V. Foley 472 

V. Mallory^ 860 

NulomoUne Co. v. Stromeyer. . . 674 
Nunda v. Crystal Lake 669 



Nuneaton Local Board v. Gen- 
eral Sewage Co 731 

Nunn V. Fabian .- 620 

». O'Brien 142 

Nutbrown v. Thornton 67 

Nutt V. Nutt 500 

V. Strayhom -. 801 

Nyce's Estate. .• 240 

Nye V. Koehne 98 

V. Sochon 647 

V. Storer 409 



Oak V. Dustin 396 

Oak Creek Valley Bank v. Hel- 

mer 548 

Oakdale Mfg. Co. v. Garst 384 

Oakes v. Turquand 343, 749 

Oakey v. Cook 613 

Oakley v. PasheUer 549 

Oakman v. Walker 74 

O'Bear Co. v. Volfer 145 

Oberlender v. Butcher 463 

Obert u. Obert. 243, 767, 771 

O'Brien ti. Ash •> . . 195 

V. Boland 372, 603 

V. Harris 738 

O. & C. R. R. Co. V. Jackson 

Co 670 

Ocean City Ass'n v. Schurch. . . . 729 
Ocean City R. Co. v. Bray. . .65, 689 

Och V. M., K. & T. Ry. Co 345 

Ochiltree v. Wright 246 

Ochsenbien v. Papelier 644 

O'Connell v. Case. 609 

V. Chicago Terminal 

R. R. Co 689 

«. O'Conor. . 74 

V. Surety Co 662 

O'Connor v. Clark 488 

V. Fitzgerald 507 

II. Irvine 147 

V. O'Connor 471 

ti. Slachetka 686 

V. Spaight 760 

Oconto Co. V. Lundquist 651 

O'Daniel v. Streeby 365 



TABLE OF CASES. 
[The references are to the pages.] 



cxxxm 



Odd Fellows' Saving Bank's 

Appeal 68 

OdeUt). Odell 231 

«. Moss 405 

Oden V. Lockwood 149, 368 

Odenbaugh v. Bradford 265, 747 

Odiome v. Moulton 531 

Odieii. Odle -. '. 60 

O'Donnell v. Chamberlin 594 

V. McCool 150 

V. Vandersall 747 

V. White 150 

O'Donohue v. Smith 860 

Oehler v. Levy .'^ 705 

Oelrichs v. Spain 24, 62, 341 

Ogden's Appeal 99, 102, 195 

Ogden V. Astor ". 763, 764 

V. Larrabee. 243, 416 

Odgen City v. Armstrong 669 

Ogg V. Schultz 421 

Ogilvie-!). Jeaffreson ' 344 

Oglesby v. Wilmerding 116 

O'Hara v. Dilworth. . ; 148 

V. Dudley 341, 359 

V. Nelson 703 

t). Stack. 735 

Ohio Insur. Co. v. Ledyard 469 

V. Ross. 470 

Ohio Tax-Cases 669 / 

Oil Co. V. Delaney 745, 746 

V. Hunt 640 

». OilCo 603, 606, 608 

V. San Antonio 637 

ti. Sylvester.. 384, 385 

Oil Creek R. Co. v. Atlantic and 

Great Western R. Co 313, 600 

■ O'Kane v. 9'Kane 683 

O'Keefe v. Sheehan 699 

Old Colony R. Co. v. Evans 589 

Old Dominion Copper Co. v. 

Bigelow 414 

Oldfield's Estate 288 

Oldham v. Hughes 516, 525 

Oldhams v. Jones 764 

Old South Society v. Crdcker. . . 209 

Old Times Co. v. Caagy • 68 

Oles W.Wilson 599 

Olive, In re 241 



Olive V. Dougherty. ., 154, 621 

Oliveira v. University 62 

Oliver v. Brickland 821 

S.Oliver 359, 410 

D.Piatt 159 

V. Ross." / . . . . 405 

V. Sanborn 465, 470 

Ollendorff v. Abrahamson 728 

OUey V. Fisher 616 

Ohnstead's Appeal 647 

Ohnsted v. Olmsted 748 

Ohiey V. Butte Co. . , 625 

p. Conanicut Co. 810 

Olsen D.^Youngerman. 98 

Olson V. Bremerton. . . . : 700 

V. Erickson 618, 747 

V. Lamb 171 

V. Lovell 607 

Olston V. Water Co. 342 

Olympia, In re 414 

Omaha Bridge Cases 612 

Omaha Lumber Co. v. Cb-Oper- 

ative Inves. Co 598 

Omnium Electric Palaces v. 

Barnes 414 

O'Mulcahy v. Holly .492 

O'Neil V. Behanna 691, 695 

O'Neill V. KUduff . . . ^ 421 

«. O'NeiU 157 

Onondaga County Savings Bank 

V. United States 328 

Onondaga Nation v. Thacher . . . 596 

Onslow V. Wallis. 109 

Ontario Bank v. Mumford. . .t . . 300 

«. Root. 118 

Ont. & Western Ry. v. Daven- 
port 777 

Ontario Salt Co. v. Merchants' 

Salt Co 389 

Opdyke v. Bartles 256 

Oppenheimer v. Levi 171, 860 

V. P. B. & W. R. 

R ' 691 

Oram v. Rothermel '..... 356 

Orbin v. Stevens 596 

Ordway v. Chace 744 

Oregon Lumber Co. v. Jones. . . . 164 
Oregon R. R. v. United States. . . 313 



CXXXIV 



TABLE OF CASES. 



[The references are to the pages.l 



Oregon Steam Nav. COi v. Win- 

sor 387, 389 

O'Reilly v. Nicholson. 498 

V. Reading Trust Co. 66, 328 
Oriental Commercial Bank (Case 

of) 537 

Ormes v. Beadel 442 

Ormsby v. Graham 615 

Orne v. Fridenberg 729 

O'Rorke v. Bolingbroke 373 

Orphan Asylum v. McCartee. . . 863 

Orr V. Bennett 258 

V. Blackwell 554 

V. Diaper ». . . 844 

». Echols 324 

V. Investment Co 369 

t). Perky Co 176 

V. Peters 419 

V. Zimmerman 312 

Orrell v. Orrell 500, 503 

Orton V. Smith 861 

Ortt V. Schwarta 397 

Osborn v. Bank of United States 

726, 738 

V. Carr 453 

V. Charlevoix 64, 653 

D.Coal Co 751 

V.Elder 481 

«. Heyer 865 

«. Morgan 201 

B.Noble. . .'. J 548 

U.Phelps....' 617, 746 

Osborne v. Gordon 144 

V. Missouri Pac. Ry. 

701, 707 

Osceola >. HajTiie 489 

Osincup V. Henthorn 320 

Osgood V. Franklin 371, 372, 

603 

V. Rogers 216 

Osmond v. Fiizroy 393 

Osterman v. Baldwin 115 

Ottrander v. Quin 495 

U.Weber 60, 61 

Otis V. Beckwith 122, 127 

Otley V. McAlpme's Hen's 764 

Ottw. Duffy 150 

Ottenhouse v. Burleson. ...".... 620 



Oury t). Saunders 547 

Overman's Appeal HI 

Overseers v. Tayloe 213 

"Overton (Bank of) W.Thompson. 461 

V. Banister 495 

V. Lea 382 

Owen V. Hpman 863 

V. Meremey 786 

V. Paul 306 

Owens V. Andrews. 506 

«. Childs 672 

V, Crossett 685 

■ V. Dickinson 185, 188 

V. Greenlee 534 

w. Miller 469 

V. Williams 115 

V. Wright 377 

Owings V. Baldwin 613 

V. Myers 471 

Ownes V. Ownes 122 

Oxford V. Tyrell 14 

Oxford and Cambridge (Univer- 

' sities of) V. Richardson 710 

Oxford's (Earl of) Case.' 20, 

.643, 645 

Oyster v. Knull. . . : 139 

Oaley v. Ikelheimer 190 



Pace V. Smith 786 

Pacific Co. V. Lewis 643, 648 

Pacific Live Stock Co. t). Gentry. 71 
Pacific R. R. Co. v. Campbell.. . 608 
Pacific Vinegar Works v. Smith. . 409 
Packard v. Beaver Valley Co.. . . 861 
V. Old Col. R. R. . . 120, 121 

V. Putnam, 117 

V. Stevens 660 

Paddock v. Fletcher 353 

Page V. Allen 669 

.V. Estes 198, 201 

V. Greely 613 

V. Heath 807 

V. Murray 729 

D.Page. . .' 153, 154, 156 

V. Rouss 507 

V. Vankirk 789 



TABLE OF CASES. 
[The references are to the pages.] 



CXXXV 



Pagenstecher v. Carlson 731 

Paine v. Bank , . 483 

». Forney 216 

, V. Paine 124 

Paisley's Appeal 137 

Palenske v. Palenske 498 

Pallen v. Agricultural Bank 539 

Pallis V. Robinson 805 

Palmer v. De JVitt 715 

V. Ford 312 

V. Harris 720 

V. McBride 608 

». Oiler 209 

V. Pahner. , .. 870 

V. Bichardson. 620, 622 

V. Scheftel ;... 810 

V. Shields 364 

V. Simmonds 142 

V. Sinnickson 60 

t>;Snell 554 

V. Williams. 457 

Palmes v. Danby 256 

Palmetto Lumber Co. v. Risley . . 159 

Pamplin w. Ry. Co 466 

Panama, etc., Royal Mail Co., 

Inre 681 

Panhandle Lumber Co. v. Ran- 
cour 328 

Pappenheim v. Metropolijtan Ele- 
vated Ry. Co '. 764 

Paquin v. Milliken 339 

Parbury's Case 488 

Pardee Co. v. Odell. . .: 686 

Parham v. Green 542 

Paris Co. v. Burks 677 

Parish v. Bainum 792 

V. Camplin 318 

Paris Skating Rink Co., Inre. . . 285 

Paris V. Greig 596, 607, 612 

Park V. Blodgett 318 

V. Johnson 371 

^ V. Nat. Druggists' Ass'n 387 

Park Co. v. Van Dusen 731 

Parke ».Boston 324 

V. Leewright 620 

Parker's Appeal 99 

Parker" t). Bank 357, 579 

V. Boyle 146 



Parker v. Brancker 580 

V. Brooke .......... 180, 182 

V. Catron. 369 

- V. Coburn ^ 822 

V. Crittenden 496 

V. Culvertson 561 

V. Frith 629 

V. Funk 482, 491, 492 

V. Furlong 686, 687 

V. Garrison 727 

W.Gerard 764, 767 

V. Hayes -. ;'. 366 

V.Kelly ._677 

V. Lumber Co. 859 

V. Oliver 310 

V. Parker 620 

V. Ross 409 

V. Sears 711 

V. Stevens 859 

». Wells. -..'621 

V. Whyte 731 

V. Winnipiseogee Co 698 

Parker Cd. i/..Schuler 647 

Parkerson v. Borst 406 

Parkes v. White 192, 408 

Parkey v. Ransey 492 

Parkhurst v. Kinsman 710 

V. Van Cortlandt 619, 621, 
- 626, 754 

Parkin, Inre 607 

Parkinson v. Hanbury 269 

Parkist v. Alexander 169, 172; 

270, 468 

Parkman v. Savings Bank 124 

«. Welch 639, 555 

Parks W.Jackson 471 

V. Sherman 546 

Parkside Co. v. MacDonald. . . . 468 

Parlin w,-Moulden 669 

Pamall v. Pamall 136 

Pa. R. R. Co. w. Ewing 64 

Parrett D. Shaubhut 468 

Parrott v. Chestertown Bank . , . 5,41 

Parehall's Appeal 243, 408 

Parsons v. Baker ; 138 

V. Durand .• 677 

w. Hoyt 471 

V. Hughes 682 



CXXXVl 



TABLE OP CASES. 



[The references are to the pages.] 



Parsons v. Parsons 198, 202 

V. Tacoma, etc., Co. . . . 409 

Parson's Adm'r v. Wilson. 306 

Partridge v. Havens *. 156 

Paschal v. Acklin 214, 226* 

Paschall v. Hinderer 344 

Pasley v. Freeman. . . 337 

Pasquay n. Keithley 462 

V. Pasquay 625 

Passyunk Building Ass'n Appeal 760 
Pa. Steel Co. v. City Ry. Co. . . . 561 

Patch V. Ward 336 

Pate J). Blades 360 

PatersoD v. Paterson 202 

Paterson, etc., R. Co. v. Jersey 

City 656, 659 

Patrick, In re 128 

Patrick v. Bingaman Ill 

Patten v. Moore 457, 464 

V. Wilson 290 

Patten Paper Co. v. Kaukauna 

Co. . : 677 

Patterson's Appeal .699, 728 

Patterson v. Barlow 671 

V. Bqehm 430 

f. Fish 672 

«. Hewitt 67 

w. Kirkland 358 

i>. Xiane 60 

V. Lennig 174 

f. Lytle 481, 493 

• V. McCamant. .-. 659 

». Rabb? 297 

V. Reed. ./ 617 

V. Smelting Works . . . 409 

V. Wyman 377 

V. Yeaton 620 

Pattison v. Skillman 596 

Patton V. Borough 470 

V. Campbell 304 

V. Chamberlain 118 

V. Eicher 859 

V. McClure 620 

■Paul V. Draper '. 163 

V. Fulton 458 

V. Paul 124 

Paulison v. Van Iderstine 326 

Paulko. Mayor of Sycamore. 70, 653 



Pavesich v. New Eng. Life Ins. 

Co ; 738 

Paxton V. Harrier 539, 555, 

». Rich 673 

Payette v. Ferrier 405 

Payne v. Bullard 62 

V. Emmerson 639 

'v. Extract Co 860 

V. Graves 764 

V. Lumber Co 76 

V. Patterson 264 

V. Payne 401 

V. Sheldon 809 

». Wayland 702 

Peabody v. Chicago Gas Trust 

Co 388 

V. Damon 483 

V. Flint 737 

V. Norfolk 674 

V. Tarbell 151, 153, 630 

Peach V. Duke of Somerset. . 307, 308 

Peacock Co. v. Honscutt 317 

Peacock v. Peacock 788 

Peak V. Dorwin 546 

V. Hayden 727^ 

Peake v. Highfield 761 

u. LaBaw .. . 189 

Pearce t). Buell 326 

V. Creswick 860 

V. Morris 256 

V. Roberts 290 

V. Smith 462 

f> Watts 609 

Pearman v. Pearman 860 

V. Wiggins 639, 690 

Pearpoint v. Graham 788 

Pearse, Ex parte 578 

Pear^ v. Green 260 

PearsoU v. Chapin 343 

Pearson's Case 416 

Pearson v. Cardon 662 

t>. Darrington 57 

t». Jan^ison 245 

V. Morgan, 338 

V. Seay 264 

V. Willard..' 601 

V. Williams 311 

Peck V. Bullard 345 



TABLE OF CASES. 
[The references are to the pages.] 



CXXXVII 



Peck V. Ellis 531, 538 

V. Heurick " .^ 285 

ti. Levinger 608 

V. Scofield 124 

Peckham v. Balch 621 

0. Barker 620 

Peek V. Gurney 353 

Peers v. Lambert 625 

Peery v. Hall 48'i' 

PeifFer v. Lytle 157 

Peintner v. Barnes 428 

Peirce v. Attwill.^. 217 

v. Dock Co 311 

Pelrs V. Peirs ._ 683 

Pell w. Ball..:... 767 

V. McCabe 852 

V. Mercer 211r 

Pelletreau v. Jackson 276 

Pellman v. Hart .- . . . 293 

Pelouze V. Slaughter. . .' 379 

Pelt V. Strickland 554 

Peltier v. Peltier .1 . . . 202 

Pelton V. Place. 56 

Pember v. Inhabitants of Kings- 
ton 216 

Pemberthy Injct. Co. v. Lee 722 

Pemberton v. Pemberton 502 

Pembroke v. Logan 622 

Pence v. Carney 704 

Pendleton ». Dalton 600 

Penfield v. Dunbar. . , 457 

Peninsular, etc., Co. v. Pacific 8. 

W. Co 78 

Penna. Steel Co. v. New York 

City Ry. Co 561, 862 

Penn v. Ingles 647, 760 

w.Lprd Baltimore.. 78, 90, 593 

tf. Whitehead 190 

, Penn Bank v. Hopkins 810, 811 

Penn Co. v. Greensboro. ........ 608 

Pennell v. Deffell. 160 

!). Ennis 133 

Pennington v. The Governor 306 

* Peimock's Appeal 354 

Estate 142 

Pennock «. Coe 281, 283, 285 

' Pennsylvania (Bank of) v. 
Potius. . , 536 



Pennsylvania Co. v. Delaware, 

etc., Co 604 

Pennsylvania Co. v. Phila. Co . . . 550 . 
Pennsylvania Co. v. United States 390 
Peimsylvania Co., etc., v. Frank- 
lin Fire Ins. Co. . , 596 

Pennsylvania Hospital v. Dela^ 

ware Co. 215 

Peimsylvania Ins. Co. v. Foster. . 188 
Pennsylvania Lead Co.'s Appeal. 696 
Pennsylvania R. Co.'s Appeal. . 597 
Pennsylvania R. R. Co. v. Kelley. 639 
Pennsylvania Salt Co. v. Neel. . 181 
•Pennsylvania (State of) v. Wheel- 
ing Bridge Co. . .636, 691, 706, 707 

Penny w.AUen 93 

V. Avison 241 

V. Martin 303, 328 

v. Turner 143 

». Watts 465 

Pennybacker v. Laidley. . . .358, 762 

Penrose* Estate '. 231 

Pentz V. Bruce 672 

People ex rel. L^Abbe v. Dist. 

Court 738 

People V. Barrett 677 

W.Brown 480, 482 

V. City Bank of Roch- , 

-ester ; 160 

V. Cogswell ...'-.. : 216 ' 

V. Cummins 496 

V. Deposit Co .- 160 

u. District Court 738 

•». Duyer 386 

t). Ehnore 293, 294 

V. Houghtaling 62 

V. Howe . . •. 61 

V. Mercein : 832 

«. New York 737 

V. North ' River Sugar 

Bef. Co 388 

«. Powers . .■ 228 

V. Prouty 64 

w. Rose .720, 726 

V. Shplem . . ^ 791 

V. Stock Brokers' Build- 
ing Co 613 

V. Sup. Ct.;of New York. 311 



cxxxvm 



TABLE OF CASES. 



[The references are to the pages.] 



People V. Tioga 287 

People's Bank v. Miller 548 

«. Loeffert...571, 807 

People's Bank's Appeal 348 

B. and L. Ass'n v. May- 
field. . 553 

Gas Co. V. American 

Gas Co 598 

Nat. Bank of Pittsburgh 

V. Loeffert 419, 806 

Nat. Bank v. Marye. . . 74 

Sav. Bank v. Denig. . . . 194 

V. Parisette. 609 

». Webb 127 

Peoples V. Peoples Bros 541 

Pepper's Will 331 

Pepper v. Lee 182 

Perceval (Lord) v. Phipps 716 

Percival v. Harger- 365, 366 

V. Wright 409 

Percy v. Cockrill's Extr 344 

Perih V. Carey. . .209, 219, 226, 230 

Perkins, In re 438 

Perkins v. Butler County 278 

V. Coughlan 513 

W.Elliott 185, 190 

w. Gay 327 

V. Hays. 192 

V. Lyman 311 

Pellberg v. Smith 718 

Perls V. Saalfeld 384 

Perot's Appeal 513 

Perrinj). Crescent City Co 698 

V. Lepper 242 

Perrine v. Newell 245 

Perry v. Bank 291 

V. Boileau 181, 182 

V. Craig 344 

V. Dicken 407 

V. Lucas 782 

V. McDonald 860 

B.Parker 642 

D.Pratt....'. 781 

V. Pye , 530 

V. Rogers 364 

ti. Truefitt 718, 721 

Perry-Herrick v. Atwood 431 

Peru (RepubUc of) v. Weguelin. . 849 



Peter ». Beverly 247, 510 

4). Wright 357 

V. Florence 317 

V. Jones 480 

V. Lohman 361 

V. Mortimer -.'377 

V. Prevost 659 

V. Tunell .^. 575 

Peterson v. Ball 288 

V. Bauer 598 

V. Boswell 369 

». Budge. . .'. 410 

v. Chase 609 

D.Clark...' 264 

». Ferrell 682 

V. Moore 601 

-V. Vanderburgh. ...... 56 

Petillon V. Hippie 379 

Peto V. Hammond 466 

Petre v. Espinasse , . . . 129 

Petrie V. Badenoch 169 

V. Torrent 761 

Petroski ». Minzgohr 171 

Pettibone v. Hamilton 637 

V. Thomson 290 

Petticrew «. Greenshields 68 

Petty V. Petty 435, 776 

Peugh V. Porter 278, 288 

Peverell v. Huse 14, 640 

Peyton v. Hallett 278 

Phalen ». Trust Co 598 

Phelan v. Smith 63 

Phelps V. Benson 355 

V. Ellsworth.- 270 

V. Green 771 

V. Harris 859 

V. Holdemess 379 

». Pond 514 

V. Seely 154 

Philadelphia W.Davis.. 500, 503, 505 

V. Fox 209, 235 

ti. Ke3rstone Bat- 
tery A.. . .215, 217. 
V. Masonic Home. . 215 

V. Overseers 215 

V. Penna. Hospital. 215 
V. Women's Chris- 
tian Assoc 215 



TABLE OF CASES. 
[The references are to the pages.] 



CXXXIX 



Philadelphia (City of) Appeals 

of .288 

PhiladelphiatCity of), v. Girard's 

Heira 209, 223, 225, 231, 232 

Philadelphia Ball Club,' Limited, 

«. Lajcie 609, 733 

Philadelphia B. B. Club v. Hall- 
man ^ 733 

Philadelphia & Erie R. Co. ti. 

Catawissa R. Co • • • 737 

Philadelphia, etc., R. Co. v. How- 
ard. 483 

Philadelphia, etc., R. Co. v. 

Woeppler .281, 283, 581, 591,* 

Philadelphia Trust Co.'s Appeal . 98 
Phila. Trust Co. v. Coal & Iron 

Co 73 

Philbrook v. Delano. . .164, 167, 572^ 
Philippine Sugar Co. v. Govern- -■ 

ment 218 

Philips V. Brydges 93 

V. Crammond 159, 160 

V. Sinclair 255 

Phillip's Appeal 99 

PhiUips's Estate 295 

Phillips, Ex parte. 835 

Phillips's Exr. v. McConica, 

Guardian 320 

PhiUip's Trusts, In re 295 

Phillips V. Atkinson 794 

t). Belden 344, 764 

V. Berger. 594 

V. Bordman 684 

V. Donaldson 703 

V. !^ardenberg 368 

V. Hassell 201 

». Hogue 291 

V. Hudson 657, 658 

V. Jackson 264 

V. Kesterson ■. . . 861 

V. Medbury 383 

V. Miely 19 

V. Moore 396 

V. Mullings 129 

V. Overfield 169 

w.Phillips..76, 149, 162, 298, 

462, 453, 454, 455, 780 

p, Pprtsmouth ,. 278 



Phillips V. Saunderson 674 

w. Stagg 289 

V. Thompson . .548, 621, 626, 
' 630, 754 

i). Willis ' 407 

V. Winslow 281, 283 

PhiUis V. Gross 456, 464, 468 

Philpott V. Elliott 617 

' Phinizy v. Guernsey. . . 589, 624, 625 

Phipard v. Phipard 124, 126 

Phipps V. Markin 167 

K.Willis...... 407 _ 

Phoebus V. ConnoUee. ......... 642 

Phoenix v. Gardner 263 

Phcenix Ins. Co. v. First Nat. 

Bank 550 

Phoenix Iron Ca, v. Philadelphia . 289 
Photo-Drama Co. v. Film Co... . 712 

Phyfe V. Wai-dell .,604 

Piatt V. Oliver. 169 

Picard v. Hine 186, 187 

i). McCormick .-. . 350 

Piekard v. Sears 483 

■Pickens v. Wood 160 

Pickering v. Bishop of Ely 733 

V. Ilfracombe Ry. Co.. 293 

V. Moore ,772 

V. Pickering ...'..-.... 600 
». Shotwell. . .216, 217, 236 

V. Tongue 13 

V. Townsend 561, 810 

Pickersgill v. Lahens 747, 748 

Pickett V. Green 386 

Pickford v. Talbott. .• '. . 648 

Pidding v. How. . .'. 720 

Pier f. Lee : 628 

Pierce v. Emery 281 

V. McKeehan 120, 160 

V. Mil. & St. P. R. R. Co. 

281,283,577 

w. Parrish. 579 

V. Pierce 726 

V. Robinson . . ./ 260 

V. Rollins 767 

w. Stablemen's Union 694 

W.Stewart 590 

Piersolw. Neill: 607 

Pierson v. Garnet 138 



cxl 



TABLE OF CASES. 
[The references are to the pages.] 



Pierson v. Phillips 162 

V. Pierson 116 

Pigot V. Cubley 582 

Piggott v.. Stratton 357 

Pike V. Armstead ^ 469 

V. Dickinson 761 

V. Fitzgibbon 186, 187 

D.Pike 622, 624 

Pilcher v. Rawline 452, 473, 780 

Pillars V. McConnell 159 

Pillow V. Southwest Imp. Co.. . . 170 

Pillsbury. v. Kingon 130 

Pillsbury-Washbum Flour MiUs 

Ck). W.Eagle 722 

Pillsworth V. Hopton 727 

Pinchain v. Collard 574 

Pinckney v. Pinckney 564 

Pingree v. Comstock 130 

Pinkejton v. Manch. & L. R. Co. 

293, 294 

Pinkham v. Gear 323 

Pinkum », Eau Claire '. . . . 64 

Pinner v. Sharp 605, 608 

Pinney v. FeUows 153, 160 

Piper V. Hoard 57, 368 

«. Piper 687 

V. Smith , 792 

Piro V. Shipley 700 

Pisoataque Ins. Co. v. HiU 341 

Pit V. Cholmondeley 763 

Pitcairn v. Pitcaim 27 

Pitcher v. Barrows 468 

Pittlekow, Inre 666 

Pitts ti. American Freehold Land 

Mtg. Co. ... ! 555 

». Cable 264 

W.B.I. Hospital Trust Co.. 835 

V. WeaMey 119, 120 

Pittsburgh's Appeal 669 

Pittsburgh v. Pittsburgh Rys. 

Co '.^...y 599 

Pittsburgh Iron Co. v. L. S. Iron 

Co 317, 323 

Pittsburgh R. R. Co. «. Peterson . 647 

Pitzele V. Cohn 72 

Pla^kington v. HUdebrand 569 

Flank Road Co. v. Murray 311 

Piano Mfg.- Co. v. Auld 160 



Plant V. Woods 693 

Piatt V. Square 256 

V. Waterbury 703 

Plant V. Plaut i 138 

Pleasants v. Smitlj 653 

Pleasonton v. Raughley. ..<..... 620 

Pledge V. White. 270 

Plews V. Burrage 59, 647, 652 

Plucker v. Teller .". 174 

Plumer v. Guthrie 265 

w. Reed 176 

Plummer v. Fanners' Bank. .... 482 

Poague V. Boyce 420 

Pocahontas Coke Co. v. Coal Co.. 387 
Pocahontas Tanning Co. v. Boom 

Co 459 

Pocono Pines Assembly v. Miller. 722 

Poffw.Poflf 289 

Pohlman v. Dawson 731 

Poindexter c. Jeffries. . . . .^ 198 

Poland V. Love 291 

Polhili V. Brown 258 

V. Walter 360 

Poling V. Williams 429 

Polk V. Linthicum 249 

V. Rose 859 

Pollak V. Claflin Co 759 

Pollard V. Photographic Co.. . . . .674, 

717, 738 

«. Pollard 289, 293 

W.Shaffer 3 

Pollock w. Boyd 647 

w. Farmers' Loan & Trust 

Co 668 

w. Maison ^ 255 

,«. PoUock: 150 

w. Wright 544, 54t 

PoUman w. Curtice 148, 460 

PoUy V. Gumney 265 

Polsue w. Rushmer 698 

Ponjeroy v. Fullerton 612 

w. Wells 202 

Pond V. Carpenter 190 

w. Harwood 668 

Pond Creek Coal Co. v. Hat- 
field 67 

Pople's Case 389 

V. Koons 593 



TABLE OP CASES. 
[The references are to the pages.] 



cxli 



Poole V. Middleton _. 595 

V. Munday 240 

Pooley w. Budd? 595 

V. Driver 785 

V. Quilter 243 

Poor V. Bradbury ^ 136 

V. Hazleton 373, 

Pope V. Ames. 660 

i). Chaffee 378 

V. Clark' 701 

«. Curl 716 

V. Nichgls 458 

Pope's Ex'rs 'v. Elliott Ill 

Popham w.^Exham 415 

t».' Right." 636 

Poppers V. Meagher ........... 308 

Poftarliiigton (Lord) v. Soulby. . 652 
Port Clinton R. Co. v. The Cleve- 
land & Toledo- R. Co 611 

Porter v. Armour 688 

V. Bank of Rutland 120 

V. Cole 469 

V. Corbin 171 

V. Doby 105 

- «;. FaU 653 

V. Hardy ; . . . 492 

». Healy 409 

W.Jeffries. ,_, . 318 

V. O'Donovan . j. ....... . 754 

V. Patterson 763 

V. Porter 525 

«. Reed 659 

V. Roseman 42, i530 

'i>. Turner , 331 

V. Young 762 

Portland (Duke of) v. Topham . . 438 
Portneuf Lodge v. Western Sav. 

Co 377 

Port Royal R, Co. v. Hammond 

80, 593 
Portuondo Cigar . Co. v. Cigar 

Co " 345 

Posey V. Kinsey 601 

Post ». Hagan 400 

K. Kimberdy 760 

V. Moore. . 137 

■ V. Railroad 637 

V. Toledo R. R. Co. ..... , '844 



Postal Telegraph Co. v. Livep- 

^ more 720 

Poston V. Eubank 539 

Potter V. Edwards 262 

V. Fuller .710 

V. Graeie 338 

I). Hicks 795 

». Hollister 593, 610 

V. Muller 710 

V. Thornton 232 

J). Titcomb 345 

V. Waller 767 

Potts V. Dulin, 533 

Poiider v. C9lvin^ , 491 

Poughkeepsie Gas Co. v. Citizens' 

Gas Co.. .....;. 685 

Powe V. MoLeod .' 203 

Powell's Ex'rs v. White. ....... 544 

PoY^ell v.. Birmingham Vin. Braw. 

Co 7lS, 719 

V. Bowen 494 

V. Elliott 625 

V. Evans 23S 

V. Heisler 322 

V. Lauitzy ^ . 172 

V. Powell 406 

V. Mackenzie 156 

w. Murray 189 

V. Nat. Bank of Com- 
merce 471 

V. Stephens 539 

».- Waits...., .'. .. 653 

y. Williams 268 

Powell Duffryn Steam Coal Co. 
V. Taff Vale Railway Co.. . .'. . 637 

Power B. Re^eder. .' 758 

V. Turner 365 

Powers' Appeal . .56, 373, 374 

Powers V, Hale 603 

V. Mayo 372 

Powles V. Hargreaves 570 

Powys V. Blagrave. 680 

Poyntz V. Shackelford 61 

Prairie State Bank , v. United 

States 550 

Frame v. Ferrell 385 

Prater v. Miller 610 

Prathgr V. Prather 203 



cxlii 



TABLE OF CASES. 
[The references are to the pages.] 



Pratt's Appeal 725 

Pratt V. Ayre : 117 

V. Barker 396 

«, Brett. .> _.. 732 

V. British Med. Ass'n. . .". . 692 

V. Cames 345 

e. Carter 420 

ti. Corns 530 

V. Kendig ; 56, 659 

V. Law ..'. 754 

». McCoy !600, 606 

V. Northern .' . 813 

«. Philbrook 364 

V. Shieppard, etft, Hospital 

138, 140, 141 

V. TaUaferro .510, 513 

V. Taunton Copper Co 597 

Pratt Food Co. v. Bird 653 

Fray's Appeal 238 

Preachers' Aid Society v. Rich . . 226 

Preddy v. Rose 286 

Predohl v. O'SulUvan 550 

Prendergast v. Walls 703 

Prentis Atlantic Coast Line .... 671 
Presbyterian Board v, Culp .... 137 
President of United States v. 

Drummond 215 

Pressed Steel Car Co. v. Standard 

Car Co 674 

Presstman v. Mason 443 

Preston v. Newton 860 

V. Russell - . .- 281 

W.Stuart 610 

w. SturgisCo 59, 63 

Prettyman v. Wilkey 463 

Prevpst V. Clarke 139. 

V. Gratz, 243 

Prewett v. Trimble 353 

Price's Appeal 66 

Price V. Collins . . . ^ -. . . 61 

V.Lloyd. ■■■ ,. 620 

V. Maxwell 216, 219 

V. McDonald 469 

i». IVIiddleton ,...: 761 

V. Minot 857 

«., Oakfield Creamery Co. . 703 

V. Perrie 260 

V. Planters' Nat. Bank. ., . 186 



Price V. Price '. . 323 

w. Sisson 103, 105, 108 

». Taylor 98, 102 

V. WaUace 598, 599 

Prichard v. Ovey. 610 

Pride, In re 274 

Pride v. Boyce 537 

ti.Bubb 184 

Prideaux!). Lonsdale. .398, 399, 434 

Priestley v. Burrill 792 

Priewe v. Wise. State Land & 

Imp. Co 485 

Primeau v. Granfield 160 

Prince v. Barrow 138 

Prince Albert v. Strange '. . 715 

v. DunHey 383 

V. Pringle. 123 

Printing Co. v. Homer 286 

Printup V. MitcheU ., 620 

Prioleavf w. United States 90, 849 

Prisco V. Prisco , . . 146, 156 

Pritchard v. Elton '260 

V. Norwood 297 

V. Wallace 160 

V. Williams 368 

' Probasco v. Johnson 579 

Probett V. Walters 326 

PrOctor & Gamble Co. v. Globe 

Refining Co : 720 

Proctor V. Bennis 484 

V. Ferebee 78 

V. Putnam Machine Co.. 489 

V. ^atley 359- 

Professional Life Assurance Co.'s 

Case 557 

Pronick v. Spirits Distributing 

Co 737 

Proof V. Hines 338 

Property Co. v. Lumber Co. 685, 687 

Proseus v. Mclntyre , 152, 158 

Prospect Park & Coney Island 
R. R. Co. V. Coney Island & 

Brooklyn Co .608, 612 

Prosser v. Edmunds 285 

Prothero v. Phelps 652 

Proudf oqt v. Wightman 607 

Providence Co. v. Allen 348 

Providence Co. v. Fessler 367 



^ TABLE OF CASES. 
[The references are to the pages.] 



cxliii 



Providence Inst, for Savings v. 

Carpenter 119 

Providence Steamboat Co. v. 

Fall River 685 

Provident Clothing Co. v. Mason 384 
Provident Loan Ass'n v. Carter. 555 
Provident Trust Co. v. Fletcher 

374, 376 
Provident Trust Co. v. Mcintosh 

366, 628 
Provost of Dumrifes v. Abet^ 

or bmbie ;..-.... 225 

Prudential Assurance Co. v. 

Knott '. . 739 

Prudential Co. v^. Miller 743 

Prudential Insur. Co. v. Thomas. 668 

Pruitt V. Pruitt 149 

Pruner v. Pendleton 703 

Pryce w/Bury 577, 678 

Publ. Co. ». Foltin 660 

Public Service Co. v. Carboy .... 671 
Public Works v. Columbia Col- 
lege 806 

Puckett V. Benjamin. 150 

Pugh V. Currie 159 

V. Good 620 

V. Hayes. 95 

«. Pugh.'. ; 159 

Pullanw.C.ifeC.AirLineR. Co.. 283 

PuUiam t>. Newberry 420 

Pullman v. Upton 416 

Car Co. V. Central 

Transp. Co.. 389 

V.Tex. &Pao. "R. Co. . 611 

Pullman Co. o. Tambel 669 

Pulsford ». Richards 360, 365 

Pulteney v. Darlington 526 

e. Shelton 731 

Pumfrey, In re 161 

PurceU V. Miner 619, 621 

V. Purcell 202 

Purdy V. Lynch 237 

y. Purdy 152 

V. Underwood 265 

Purvines v. Harrison 325 

Purvis V. Brown 257 

V. United Brqtherhood. . . 694 
Fusey v. Desbouvrie 322 



Pusey V. Pusey 595 

' Pusic V. Salak 371 

Puterbaugh v. Elliott 324 

Putnal V. Walker 496 

Putnam v. Grace 608 

V. Misochi . .^ . 531 

r. Tinkler 609 

W.Tyler 74, 490 

Nail Co. V. Dulaney . . . 718 

Pye, Ex parte 123, 825, 826 

Pye V. Daubuz 594 

Pyle's Appeal ^. . . ; . 513 

Pym V. Bowremann 256 

Pyne, In re 221 

Pyrkew. Waddingham . 585, 613, 614 



V. Quarles. 374 

Queen, Inre. : '. . . 813 

Queen (The) v. Shropshire Union 

■ etc., Co .* 298, 299 

Queensland Land & Coal Co., 

Inre 76 

Quiggle V. Vining 744 

'Quin's Estate 194 

Quinoy, Missouri & Pacific Rail- 
• road Co. v. Humphreys. . .561, 868 

Qmnn v. Leathem 695 

V. Hayden 441 

V. Roath^ 600 

Quinnipiac Brewing Co. v. Fitz- 

gibbons 556 

Quirk ». Bank ;. 598 

V. Liebert 174 



R. Co. ». Mfg. Co 746 

». Mayor 686 

J), Wilson .; .. 288 

R. Leslie Co. y. Scheill 496 

Raasch v. Raasch . 71 

Rabbath v. Donaldson 205 

Rabe v. Dunlap. 67, 68 

Rachel Colvin's Case 864 

Radarit v. Werheim Mfg. Co. . . . 483 
RadcliSe'sEx'rsw. Wightman. . . 764 



cxli'v 



TABLE OF CASES. 
[The references are to the pages.] 



Radar v. Star Co 481, 671, 572 

Radzuweit j>. Watkins , . 647 

Rae V. Joyce 373 

Raffety v. King. . .' 256 

Raggett V. Findlater. 721 

Ragsdale v. Hagy 296 

t). Nagle •. . 732 

Rahn v. Milwaukee Electric Ry. 

&L. Co 705 

Raht V. Attrill 867 

Raich*. Truax - 692 

Raikes v. Ward 120 

Railroad Co. v. Claghom 551 

W.Dubois 483, 493 

V. Garrison 657 

V. Raiboad Co 760 

V. Sommera 863 

». Soutter. ...' 323 

V. Stamp 859 

Railway Co. v. Bennett 350 

V. Blair. 7 594 

V. Cunningham. . . . 395 
V. Manchester Mills 5^ 

V. McCarthy 483 

Rains v. Wheeler 207 

V. White 718 

Raley v. Umatilla Co 215 

Rallason, In re 582 

Ralls !). Hughes. . 780 

Ralston v. Ihmsen 599 

Rambo v. Bank 66 

Ramirez v. Smith ; . . . 463 

Ramsay v. Bell 1 767 

Ramsdell v. Butler 660 

, Ramsey's Appeal 278, 553, 554 

Ramsey v. Ramsey ,. . . . 513 

Ranch Co.'j). Cuipbow . 681 

»>Gueydan.r...481, 491 

Rand v. Cartwright 256 

V. Webber 326, 336 

Randall v. Bradley 255 

V. Morrell.: 790, 865 

W.Russell 171 

V. Silverthom 470 

Randolph, Inre. .-.' 240 

Randolph v. ICinney . ......... 656 

V. Quidnick Co 372 

V, Randolph 764 



Ranelaugh v. Hayes. 853, 854 

Rangeley v. Spring 494 

Ranger v. Great Western Ry. Co. 759 
Ranken v. Alfaro . . .,r. ...... .. 570 

Rankin v. Huskisson 638 

■ »; Mortimere. .260, 264, 317 

V. Rankin 265 

Ranney v. Byers 117 

Ransdell v. Moore. . , 369 

Rapalee v. Stewart 491 

Rapid Road Transit Co., 7n re. . 571 

Rardin v. Walpole. . . -. 648 

Raski V. Wise 266 

Rasor v. Dev. Co -. 810 

Rast V. Van Deman 669 

Rath ». Vanderlyn 443 

Rathbone v. Warren 762 

Rathbun v. Rathbun 167 

RatliH v. Baltzer 394 

Raton, Water Works Co. v. Raton 60 

Ratshesky v. Piscope 625 

Rau V. Von ZedUtz ; . . 395 

Ranch v. Fort Dearborn Nat. 

Bank. .1 663 

Rauen ». Ins. Co ; 322 

Rausch V. Hanson 608 

Ravald v. Russell . _ 256 

Ravany v. Assurance Society . . . 370 

Rawden v. Shadwell 378 

' RawUngs v. Stewart 268 

Rawll V. Baker.' ;, 594 

Ray V. Baker 365 

V. Doi:^hty 246 

V. Norsworthy 666 

V. Simmons 124 

Raybold v. Raybold 117 

Raymond v. Chicago Union Tr. 

Co 669 

«. Ravel.. 67 

Riymer, Inre 240 

Rayner v. Rayner 240 

V. Rederiaktiebolaget. . . 308 

Raynor v. Timetson 489 

Rea V. Canal Co 76 

' V. Wilson 76 

Read v. Bailey 797 

V. Brayton ; . . . 868 

D.Long. 601 



TABLE OF CASES. 
[The references are to the pages.] 



cjdv 



Read »^ Kobinson 130 

v.. Simons : . . . . 579 

Readdy v. Pendergast.- 407 

Reade' v. Conquest j . . . 714 

V. Livingston 423 

' Reader ». Speake. . . ." 813 

Reading (Corporation of) v. Lane 214 

Ready v. Smith 809 

Reagan v. Farmers' Loan & Trust 

Co Sfl 

V. Reagan .' . 574 

/Real Estate Co. v. Hatton 687 

». Spelbrink.... 609 

Real Est.' Trust Co. v. Bird.. . . .. 597 

V. Hatton . . 682 

Realty Co. v. Gilbert 625 

Real Estate Co. . . .-. 754 

Realty, etc., Co. v. Klein 684, 686 

Rearich v. Swinehart 441 

Reaves v. Garrett. 498 

Reavis v. Fianza 698 

Records v. IVIcKim.. , ; 654, 798 

Reddaway v. Banham.T .... 719, 725 

Redford v. Clarke 66, 476 

V. Gibson 575 

Redgrave v. Hurd. -. . . ;360, 365 

Redhead v. Parkway' Driving 

Club...' 412 

Redman v. Green ; . 764 

Redmayne v. Forster 579 

Redmond v. Excelsior Saving 

Fund 487 

n'Sav. Fund 7... 483 

Red P. Cattle Club v. Red P. 

Cattle Club. ^ 726 

Redivine v. Hudman 599 

Reed's Appeal 474 

Reed's Estate ^ . . 618 

Reed v. Aubrey. 173 

V. Bachelder 538 

«. Beals 790 

-V. Dickey,. 453 

V. Gannon 465 

». Hollister 368 

«. MeCourt 489 

t). Minell 345 

V Sidener 357 

- V. Stevens 859 



Reed v. The Prior of Launceston 14 

V. Vannorsdale 123 

Reeder v. TruUinger. . .' 630 

Rees V. Berrington 552 

V. City of Watertown. ... 58, 62 

V. De Bernardy'. : . 376, 395 

V. Mining Co. . 686 

V. Waters 198, 202 

Reese v. Bradford 808 

V. Kinkead 672 

V. Livingston 110 

W.Ruth 124 

V. Wyman ' 360 

Reese River Mining Co. v. Smith 

444, 749 

Reeve v. Whitmore 282 

Reeves v. Baker : 136 

V. Lewis". 461 

Refeld v. Woodfolk 571, 857 

Regan Vapor Engine Co. i^. Pac. 

Gas Engine Co 283, 287 

Regent Shoe Co. v. Haaker. . 720, 726 

Reggio V. Warren 318 

Regina v. Cross r. . . 7f)3 

V. Pierce ,. 703 

Rehden v. Wesley 239 

Reich i>. Reich 604 

Reichert v. Railway 487 

Reid's Adm'r v. Blackstone 136 

Reid V. Clendenning 513, 517 

w. Fitch ''. 159 

«;. Flippen ....; 352 

V. Freed , 790 

• V. Gifford. . '. 699 

V. Gordon .-. . . 95 

V. Lamar. .' 188 

V. Middleton .' 865 

w.«Mix 627 

V. Reid 117 

Reidy v. Small ! 128 

Reigart v. White 551 

Reighard's Estate 613 

Reilly v. Cutley 636 

Reilly v. Frias 407 

V. Gautschi 609 

V. Smith 609 

Reinhardt v. Mentasti.. 697, 698 

Reith's Estate -. . . 120 



cxlvi 



TABLE OP CASES. 
[The references are to the pages.] 



■ Reisz's Appeal ' 609 

Reitman v.. Fiorillo 367 

Relf V. Eberly 338, 344 

Rembe v. Ferguson 371, 395 

Remington v. Higgins 320 

V. Irwin 627 

Remington Paper Co. v. O'- 

Dougherty . . . ■. 751 

Remsen v. Hay ( . 260 

Renard v. Clink 318, 319 

Renfeldt v. Brush ' 396 

Renison v. Ashley 60 

Renitz v. Williamson 265 

Rennyson v. Rozell 600, 605 

Reno V. Noss 600, 620 

Rentz V. Granger. ...'..., 59, 64 

Renz V. Stoll 117 

Repass V. Moore. ..., .'. . 647 

V. Richmond 492 

Repetto V. Paggio 660 

RepubUcan Mountain Silver 

Mines v. Brown 738 

Republic of Costa Rica v. Er- 

langer _'. 849 

Peru V. Weguelin.. . 849 

Reservoir Co. v. Chase 322 

Resor «. Resor 160 

Respass v. Breckenridge 771 

V. Jones '. . . . 71 

Retsch V. Renehan : 68 

Revell V. The People 706 

Reves v. Toulman 312 

Revett V. Harvey 402 

Rex V. Akers 849 

V. Arundel 305 

V. Hare 8 

V. Newman 216 

Rexford v. Southern Woodland 

Co..r 629 

Rey V. Lecouturier 719 

Reyburnw. Mitchell.. .543, 796, 809 

V. Sawyer 690 

Reynell v. Sprye 361,' 847, 849 

Reynolds, Ex parte 414 

Reynolds v. Boland 70 

t». Clark 641 

V. Crawf ordsviUe Bank 860 
V. Davis 694 ' 



Reynolds ». Evans. . . .360, 364, 366 
.». Fibre Co.. 842, 843, 846 

ti. Godlee 520 

, V. Hennessy 243, 255 

». Hill.... 644 

V. Morris 150 

D.Nelson 652, 654 

w.'Pitt. 312 

V. Tooker 556 

V. Waterville 670 

Rhame v. Lewis 542 

v.vRhame 203 

Rhea v. Forsyth '. . 699 

Rhett V. Mason. 137 

Shines v. Baird 453 

•Rhode Island Hosp. Trust Co. v. . 

Ohiey 211 

Rhodes ii. Arnsinok 814- 

«r. Bate 399 

W.Cook , 703 

V. Dunbar. 698, 701, 703 

V. Farmer 441 

Rhymer v. Fretz 690 

Rhyne v. Love 763 

Ricardi v. Gaboury 829 

Riceard i>. Prichard 290 

Rice's Appeal 413, 548 

Rice, etc., Co. v. Griffin 640 

Rice MilUng Co. v. Romero. . . . 638 

Rice V. Burnett 103 

V. Dewey. 485 

V. Downing 537 

«. Gibbs 603 

V. Groffmann 481 

K.Hale 869 

V. Morton : 548 

V. Noakes & Co, 260 

V. Railroad Co.. 60fr 

V. Rice .264, 298, 299, 455, 577 

V. Rigby 154 

ii.Tonnele 864 

V. Winslow 378 

Rice 6o. V. McJphn 807 

Ric-h V. Black: 170, 173 

w.' Braxton 860 

t). Cockell..... 184, 502 

V. Doneghey 370 

W.Roberts 160 



TABLE OP CASES. 
[The references are to the pages.] 



cxlvii 



Rich V. Whitfield 526 

Richard's Appeal 698, 701 

Richards, In re .125,, 294 

Richards v. Crews 690 

V. Delbridge ^. . . 126 

V. East Tenn. Ry. Co. 

829, 835 

». Green 608 

V; Learning. ....'. .285, 579 

V. Mackall 67, 443 

». Ontai 491 

■ ». Pitts 408 

V. Railroad Co 288, 491 

V. Revitt 732 

V. Salter 664 

». Shipley 386 

'». Starck 378 

». Wilson.., 117, 121 

Richardson v. Brooks ,63 

«. Buhl 389 

V. Coffman 483 " 

t». Doty. 530 

p. FeUner 572 

V. Graham 414 

O.Green.. .341, 409, 575 
V. Gregory. . 67, -444, 764 

w. Inglesby 120, 160 

V. Linney. ...'.. .74, 403 

V. McCIoskey 865 

». Pa. Coal Co 24 

V. Richardson ...... 126 

ti. Ridgely 674 

0. Rust 290 

V. Seevers 156, 157 

B.Taylor...; 154 

1 V. Wallis ^68 

». Washington 283 

Richardsoh's Estate, .v 376. 

Richardson Shoe Machinery Co. 

V. Essex Mach. Co 600 

Richerson, Inre. . . , 618 

Richey v. Richey 278 

Bichi V. Chattanooga Brewing 

Co , 690 

Richman v. Riehman. . .- 760 

Richmond v. Ashoraft 459 

U.Gray 615,629 

v.OgdenRy. Co 325 



Richmond v. Railroad Co 604 

Richter v. Poe 379 

w. Selin 589 

Rick's Appeal 127 

Rioker's Estate, Inre 242 

Ricker v. Scott 325 

Ricketts v. Montgomery. .'..... 243 

Rickey Land Co. v. Miller 460 

Rico V. Gaultier 870 

Riddle v. Emerson 116 

«. Whitehill. . . ._ 159 

Bidenbaugh v. Thayer 696 

Rider v. York Haven Water Co. 636 

Ridge V. Penna. B. R. Co.- 701 

Bidgeway v. Darwin 836 

V. Newbold 779 

Ridgway's Account 333 

Bidgway's Appeal. 793 

Eidgway v. Sneyd. . . .' ' 329 

Ridley v. McNau'y 620 

Ridout V. Lewis 196 

Riegel v. Insurance Co 324 

»..Wood 336' 

Riegi V. Phelps. 407 

Riesz's Appeal. 609 

Rife V. Geyer 98, 100, 110 

Rigby, Ex parte 246 

Rigby V. Connol 738 

Rigdon V. Walcott 339, 346, 749 

Rigg V. Ry. Co 695, 603, 606 

Riggs V. Gillespie 644 

V. Jones 572 

Rigler v. Cloud ...:... 108 

Rigney v. Tacoma Water Co. . . . 702 

Rigsbee v. Trees 325 

Rimmer v. Webster 84, 488 

Rinaker v. Dollar Savings Fund. . 550 

Rinehart v. Harrison , 510 

Ring V. Ashworth 316 

Riagen ti. Ranes 407 

Ringgold V. Bryan. . ......... ^ 573 

V. Ringgold 248 

Riobo V. Hontiveras 495 

Biopelle v. Doellner 62 

Ripley v. Harris 272 

Ripple V. Kuehne 443 

w. Ripple 460 

Risher v. Smith 265 



cxlviii 



TABLE OP CASES. 
[The references' are to the pages.] 



Bitter's Appfeal. . . .^ 124 

Bittaon^n. Stordy 109 

Rivera v. White 428 

Riverdale Mills v. Alabama Co. . 79 

Rivers v. Durr 835 

Riverside Co. v. San Bernardino 

Co 64 

Rizpr V. Perry 517 

Roach V. Duckworth 648 

V. Hudson. . . . 355 

V. Trood ■ 438 

Roane v. Rives ; 181 

Roanoke Co. v. Simmons 572 

Roark v. Matthews 546 

Roche V. George's Extr 120 

V. Boche. . ., 117 

Robb V. Shephard 482 

Robbins v. Moore 463 

B,oberge ». Boberge 156 

Robinett's Appeal 242 

Robbins v. Bates 415 

W.Kimball 149, 605 

V. Moore 463, 481, 490 

V. Wyman 750 

Roberson v. Goldsmith .^ 495 

V. Rochester Folding 

Box Co. . . 738 

Roberson v. Speer Bros 637 

Robert v. West .......'. 190 

Roberts's Appeal 156 

Roberts, In re •'. 564 

Roberts v. Anderson 641 

V. Cardwell 471 

V. Croft 579 

V. Dixwell 108 

V. Eberhardt. . , 803 

w., Fleming '. . . . 461 

V. Lemont 386 

V. Martin 491 

^ , V. Matthews 690 

V. Mbseley 100 

V. Northwestern Nat. 

Ins. Co • 486 

V. Roberts 173, 235 

V. Rose . . ." 576 

V. Taliaferro 324 

V. Terry 642 

■v. Totten 763 



Roberts «. Trust Co. . .' 662 

V. Walker. . . . .' 566 

V. Yaw ^ . . . . 630 

Robertson v. Bemis 116 

V. Corcoran,. . . . .599, 622 

V. Lewie 65 

•0. Parks 360 

B.Robertson.... 148, 240, 
621 

V. Wheeler 860 

Robeson's Appeal. 554 

Robeson v. Hornbaker 620, 624 

Robey's Iron Works v. OlUer. . . 670 

Robey v. Hannon 127 

Robinett's Appeal 242 

Robinson v. Appleton 573, 590 

e. Boyd 531, 535 

V. Buck 433 

V. Bullock 759 

V. Campbell 24 

V. Crutcher 125 

V. Dart's Ex'rs 188 

V. DickejR 772 

B.Farelly 260 

V. Governors of Lon- 
don Hospital (The) 514, 
521, 566 

V. Harkin 245 

ji. Iron Ry. Co 750' 

t). Kunkleman 530 

V. Loomis 311 

V. Lord Byron 634, 638 

V. Luther'. 589 

V. Macdonnell.. . .279, 428 

». "McKenna 420 

V. Owens 573, 576 

V. Pett. 243, 244 

V. Phegley. .~ . . 352 

V. Robinson 242, 525 

V. Russell 682 

V. Seay 534 

V. Storm 718, 722 

i>. Sullivan 549 

V. The Governors 566 

KTrufant 628 

• V. Urquhart 579 

'w.^Wheeler 647 

V. Willoughby 264 



TABLE OF CASES. 
[The references are to the pages.] 



cxlix 



Robinson v. Wilmington '669 

Robinson et al. (Matter of) 279 

Robison v. Boone 654 

Robson V. Doyle 848 

V. Whitingham 698, 702 

Roby V. Colehour 170,-176, 406 

Roche V. George's Ex't'r 120 

V. Roche 146 

Rochefoucauld v. Boustead. . 113, 149 

Rochelle o. Express Co ^. . 660 

Rochester Distilling Co. v. 

Rasey 283, 580 

Rockafellow v. Newoomb 401 

Rockwell V. Hobby . .'. .... 579 

V. Lawrence 754 

V. Morgan .^. . . 779 

Rockwood V. Rockwood 341 

Rocky Mt. Tel. Co. v. Tel. Co.. . 721 

Rodda V. Needham 74 

Rodee v. Seaman ■. 365 

Rodenhausen v. Craven.-, 698 

Rodgers v. Burpett 735 

Rodick V. GandeU. . , . .290, 292, 293 

v. Pines. 345 

Rodijkeit v. Andrews 288 

Roerson v. Boone. 649 

Roesch V. Worthen Co. . 288 

Rogan V. Walker 255, 260, 308 

Roger Brown & Co., In re 667 

Rogers v. Castle 332 

w. Dill 835 

V. Dopnellan. . v 150 

W.Erie 637 

W.Evans 420 

,w. Genung 148 

w. Higgins.. 189, 393 

V. Ingham 317, 320, 323 

w- Jonea 458, 469 

V. Meyers '. 257 

V. Mining Co 589 

V. Murray 152 

V. N. Y. & Tex. band Co. 167 

V. Pattie .- 755 

V. Rogers 206 

V. Rothbun 377 

w. Saunders .599, 627 

, D.Smith 188 

». Street Ry 480 



Rogers v. Thornton 359 

V. Ward 186, 191 

V. Waterhouse 613 

«..Williama. . 605 

Rogers, R. W. Co. v. Wm. Rogers 

Co...: 723 

Rohrback v. Insurance Co 190 

Roland v. Lancaster Bank. ..... 583 

V. Miller , 514 

Rolapp V. Raihoad Co 807 

Rolikatis v. Lovett 169,' 171 

Rollins V. Mitchell 369 

RoUyson v. Bourn 615 

Roboyd v, Marshall 280 

Romeike v. Romeike 723 

Roney v. Moss 601 

Rooler w. Weigle 607 

Roosen v. Hospital . . , 214 

Roosevelt ,«. Thurman. 333 

Root V. Conkling. 634 

V. Reynolds 420 

Roper, Inre. 187 

Rorer Iron Co. », Trout 356, 463 

Rorke v. Abraham 144 

- Rorvik v. Lumber Co. . . r. 286, 287 

Rosa V. Hummel 146 

^osborough v. Church. 501 

Roscarrick v. Barton 254 

Rose V. Gandy 264 

V. Hart 529 ' 

et dhv. Henderson. ..".... 600 

K. Million 542, 548 

V. Swann 605 

V. Watson 577 

Rosenberg v. Viane 661 

Roshi's Appeal 735 

Roskell V. Whitworth : . 704 

Ross V. Army and Navy Hotel. . 76 

V. Conway 399 

«. Gibbs 848, 849 

V. Hendrix 464 

V. Parks , . 609 

V. Union Pac. B. Co.. .595, 611 

Roszell V. Roszell 327, 484 

Rotch V. Einerson 227 

Rothenbarger ti. Rothenbarger. . 401 
Rothschild v. Bay City Lumber 
Co 256 



cl 



TABLE OF CASES. 
[The references are to the pages.] 



Rothschild v. Dickinson 244 

Roundel v. Currer '. . 507 

Rounds V. .McCormioJc 810 

Roundy v. Kent. . . .' >328, 745 

Roussain v. Norton 463 

Row V. Dawson. .278, 279, 288, .292 
Rowan v. Sharps' Rifle Mfg. 

Co 270 

Rowe V. Hambergar 726 

V. Johnson 156 

». Kidd. ': 860 

Rowell V. Claggett : 214 

Rowland v. Manure Co 699, 700 

B.Stanford 647 

Rowlands v. Evans 789 

, Rowley v. Rowley 439, 764 

Rowth V. Howell. 238 

Royal Indemnity Co. v. Sangor . 60 
Royal League v. Kavanagh, .... 80 

Royall V. Garter 12, 14, 640 

Royer, Inre. .: ". . . . 226 

Royer's Appeal 239 

Rozell V. Vansyckle 369 

Rozier v. Griffith 771 

R. R. Co. V. County : . . . 68 

Rubber Co, v. Devoe 724 

Rubber Mfg. Co. u. Supply Co. . . 423 

Ruckman v. Astor. 268 

V. Cory 67 

V. Decker 447 

Rudisell v. Watson 181, 182 

Rudisill V. Whitener 605 

Rudnick v. Murphy 71 

Rudolph V. Winters 379 

Ruff V. Cbpeland 750 

" Ruffell's Appeal 290 

Ruffier V. Womack 264 

Ruffin, Ex parte 795 

Ruffles V. Alston 200 

Ruffner v. Ridley 348 

Rugge V. Ellis 625 

Rumble v. Smith 859' 

RumboU, Ex parte 665 

Rumfelt V. Clemens 494 

Rumford Mai-ket Case 169, 242 

Rumph v: Abererombie 394 

Rumsey v. N. Y. & P. R. R. Co. 

595, 596 



Rumsey-Sikemeier Co. v. Bank. . 796 
Runstetterji. Atkinson. . . ."N. . 598 

Runyan v. Mersereau 254, 292 

Ruohs V. The Bank 443 

Rupert V. Mark 460, 463 

Rush V. Lewis 100 

Rushmer v. Polsue 698 

Rushton V. McKee 610 

Russell's Appeal 129, 647 

Russell V. Church 326 

W.Clark 34; 

V. Farley 754 

». Fuel Gas Co 409, 413 

V. Jackson 121, 160 

B.Miller 530 

V. Mixer 325 

V. Passmore 244 

V. Russell, 410, 435, 577, 622 

P.Sharp.., 433 

V. Southard.. . .260, 266, 747 

D. Wade 369 

Rutgers v. Kingsland 455 

Ruth V. Oberbruimer 209 

Rutherford w.Douglass 865 

V. Ott , 217 

V. Tracy 489 

Rutledge V. Greenwood 552 

Rutz V. Kehn 496 

R. W. Rogers Co. v. Wm. Rogers 

Co 723 

Ryall V. Dawson 296 

w.Rowles..276, 277, 288, 292, 
294, 295, 296, 297, 298 

Ryan v. Brown 684 

t). Dox. 355 

V. Growney 496 

V. Hamilton 384, 731 

V. McLane 608 

V. Middlesborough Town 

Lands Co 356 

V. Mockmath 750, 751 

V. Price 399 

V. Ryan 410 

V. Westminster Chambers 

Association 612 

Ryason v. Dunten 68 

Ryder v. Bickerton 240 

V. Emrick 443 



TABLE OF CASES. < 
[The references are to the pages.] 



»u 



Ryland v. Banks 190 

Rylew. %le 408 

Ryman v. Gerlach 459, 478 

Rynd v. Baker , . 127 

Rzepecka v. Urbanowski 684 



Sabel V. Slingluff 813 

Sabele v. Sabele 778 

Sabin v. The Bank of Woodstock. 294 

Saokett v. Stone 547 

Sackville-West v. Hohnesdale 104, 
105, 106 
Safe Deposit & Trust Co. v. Dia- 
mond Coal V. Coke Co 617 

Saffer v. Mast 407 

Safford v. Ensign Mfg. Co... 850, 851 

V. Rantoul 116 

Sage V. Memphis & Little Rook 

R. Co 808, 811 

V. Winona & St. Peter R. 

R. Co 861 

Sagoie v. Mackey 239 

Sailor v. Hertzog .463, 464 

Sailsberry v. Sailsberry 533 

Salant v. Sauserman 638 

Sale V. Moore 136 

Salemonson v. Thompson 420 

Saler v. Lessy? 609 

Salisbury (Earl of) v. Cecil. . . .' . 846 

Salisbury (Matter of) 835 

Salisburyv. Clarke... .117, 153, 167 

«;. Slade..' 514 

Sallies v. Johnson 357 

Salmon, In re 241 

Salmon p. Bennett 424 

iJ.Clagett..' 682 

y. Gibbs : . 438 

Salomon v. Martin '. . 572 

V. Salomon 425 ■ 

SaJsbury v. Black 355 

Salt V. Marquis of Northampton . 260 

Salter v. Salter 236 

Saltonstall v. Sanders 228 

Saltus V. Bedford Co 717 

Salusbury v. Denton }143, 144 

Sample v. Coulson 148 



Sample v. Country. .- 493 

Sampsonj). Shaw 387 ' 

Samuel v. Wiley 869 

Samuell v. Jlowarth 552 

Samuels v. Spitzer. . . . . . .7. . . . 725 

Sana Co. v. Christley 256 

Sanborn v. Kittredge 57 

V. Sanborn 62l' 

Sanders v. Beck' 265 

V. Devereux 60, 767 

V. Logan 710 

V. Newton 606 

V. Rodway. : 208 

V. Steele 150 

V. Traction Co 660 

V. Village of Yonkers. . . 860 

V. Wilson 268 

Sandford v. Weeden. ...... 153, 160 

Sandlin v. Kearney 265 

Sands v. Durham 541, 548, 549 

,y w. Ruddick 644 

V. Sands 322 

1 V. Waldo 136 

Sanford «,Kem 487 

Sanfoss v. Jones 149 

Sanitas Food Co. v. Cemer: .... 674 

Sankey v. Hawley 264 

Sanquinett v. Webster 242 

Sanquirico v. Benedetti 730 

Sanson Cordage Works v. Puritan 

Cordage Mills 724 

Santley v. Wilde 262 

Sappington v. School Fund Trus- 

t6ea. ...' 228 

Saratoga, etc., R. Co. v. Rowe. . 4^3 

Sargeant v. Sargeant 296 

Sargent v. Baldwin . . . '. 129 

V. Burdett '. . . Ill 

Sarles v. Sarles .' 507 

Sarter v. Gordon ■. 598 

Sartor v. Schaden 718 

Sarver v. Sarver 371 

Saunders's Case . . .' 681 

Saunders v. Cramer.- 592 

V. Dehew 452 

V. Edwards 105 

Saunders-Davies, In re 563 

Savage v. Jackson 364 



clii 



TABLE OF CASES. 
[The references are to the pages.] 



Savage v. Winchester. 536 

Savannah Nat. Bank v. Haskins 306 
Savannah, etc., R. Co. v. Shiels . . 690 
Savannah Timber Co. ». Deer. 

Island Lumber Co 687 

Savery v. King. .' 339, 373, 398 

Savoie v. Meyers 74,, 366 

Sawer ». Gosser 737 

Sawyer, In re 61, 64, 653 

Sawyer v. Dearstyne 216 

t). Hoag 810 

ti. Hovey 326 

». Prickett 350 

V. Upton 810 

O.Wallace 610 

V. White 404 

Saxby V. Laurenfee 14 . 

Saxlehner ti. E. & M. Co 345 

V. Wagner 722 

Saxton V. Davis 809 

Sayer v. Humphrey 330 

Sayers,w. Collyer.484, 729, 732, 753 

Saylor v. Mockbie 790 

». Penn. Canal Co.. .707, 738 

Sayre, In re 212 

Sayre v. Hughes 156 

V. Newark 701 

V. Weil 124 

Says V. Barnes ^ 403 

Scales V. Ashbrook 325 

V. Maude.- .- 126 

Scandinavia Co. v. Asbestos Wks. 721 

Scanlan, Infants, In re 834 

Scanlon v. Connor 396 

Scannell v. Amer. Soda Fountain 

Co 629 

Scarlett v. Gorham .' 471 

Scarsdale v. Curzon 106 

Scattergood v. Kirk 410 

Schadt V. Brill 467 

Schade v. Connor 566 

Schafer v. Reilly 297 

V. Wilson 487 

Schaffner v. Young 669 

Schafroth v. Ambs 190 

Sohank.«. Schuchman 341 

Schany v. Stoscheck 542 

Scharbauer v. Lampasas ....... 493 



Scharf v. Moore 190 

Scheetz's Appeal ; . . . . 685 

Scheile v. Brakell .- 717 

Schenck v. Ballou 607 

Schlelowski v. Pawlowski 808 

Scherck v. Montgomery 597 

Schermerhom v."De Chambrun's^ 

Ad'mr r:. . . . 71 

Scheuer v. Burner Co 726 

Schiefflin v. Stewart .242 

Schilb V. Moon 541 

Schilling ti.Blalck , 483 

V. Quinn 71 

Schivier v. Zitike 734 

Schlaefer v. Corson 159 

Schlecht's' Appeal 865 

Schilling v. Black. . . ; 483 

Schmaltz v. Avery 493 

Schmak v. Wooley 717 

Schmeck v. Muhlenberg 173 

Schmidt v. Barclay 265 

V. Dooling 286 

V. Scanlan 154 

Schmidtz v. L. & N. R. R. Co. 612 

Schmitheimer v. Eiseman 337 

Schmucker's Estate v. Reel 164 

Schneider v. Hildenbrand 610 

V. City of Rochester. . 64 

V. MiUer 637 

SchneU V. Chicago '. . . 494 

Schnitzels Appeal , 535 

Schnorr's Appeal 735 

Schofield V. Ute Coal & Coke Co. 805 
Scholefield v. Templer 322, 343, 367 

Schomaker v. Schomaker 672 

School, etc. V. Kirwin 160, 239 

School District «. Cowgill 61 

V. Rice 59 

Schoole V. Sail .* 654' 

Schoonmaker v. Van Wyck 243 

Schotaians v. Lancashire Rwy. 

Co 584 

Schrack v. Shriner " 539 

Schraeder Min. Co. v. Packer. . . 489 

Schrager v. Cool 148 

Schroder v. Schroder 503 

Schroeder v. Loeber 63 

V. Young 372 



TABLE OF CASES. 
[The references-are to the pages.] 



cliii 



Schroeppel v, Hopper 589 

Schuey v. Schaeffer : . . 620 

Sctiulenberg-Boeolder Lumber 

Co. V. Haywajd 657 

Schuedt V. Trust Co 99, 120 

Schultz V. Lodge. 607 

V. McLean . . '. 490 

V. SrOelowitz 297 

Schulz V. Garebaldi. 613 

Schumacker v. Dolan 124 

Schumaker v. Commissionera ... 59 

1). Mather 351 

Sohumer v. Warfield 649 

Schunun v. Seymour 669 

Schurtz V. Colvin 574 

Schuttler ». Brandfass 322 

Schuyler v. Curtis 788 

Schuykill (County of) v. Copley. 344 

Schwab V. Edge 491 

Schwarz v. Stein 576, 577 

Sehwarzwaelder v. German Mut. 

Fire Ins. Co.737 

,i>. Tegen 737 

Schwass V. Eershey 744 

Schwind v. Boyce 461 

Schwindt o. Schwindt 603 

Scofield V. Eighth School Dist. . . 737 

V. Lansing 860 

V. Bailway Co 636 

Scotch Lumber Co. v. Sage. .... 461 

Scott's Admrx. v. Sco'tt 63 

Scott V. Armstrong 530 

' W.Barton .....". 810 

V. Becher 672 

V. Billgerry 626 

, V. Brewing Co 66 

V. Brown 354 

V. Bryan 182 

V. Burton 728 

B. Coulson. 326 

■ V. Dilley • 158 

V. Edgar. 674 

». Firth. ■. 704 

V. Gallagher 470 

W.Hall....; 326 

.». Harbeck 124 

w. Henry 256 

V, Horge Show As?'n,, .... 601 



Scott 



V. Indianapolis Wagon 

Works. 419 

V. Land Mfg., etc., Co 547 

V. Latimer '; . . . . 353 

V. Lewis 463 

V. Lord Hasings 293 

V. Moore 492 

V. Neely .^808 

V. Rayment 786 

V. Spxirr. . . .' ; 441 

V. Standard Oil Co 721 

V. Tyler.. . .380, 381, 382, 383 

V. Umbarger. . 173 

Scoville V. Brock. 403 

V. Kennedy ." 770 

Scraggs V. Hill ' 672 

Scraper Co. v. Stickleman 325 

Soranton-Stove Wks. v. Clark 721, 725 

Screven' v. Joyner 531 

Scroggins v. McDougald 464 

Scruggs V. Blair 792 

ti. Decatur Land Co. .. . 68' 

». Ins. Co 655 

Sdiutchfield v. Sauter 489 

Scudamore v. Scudamore 516. 

Scudder v. Vanarsdale 610 .~ 

Scullin V. No. Am. Co 460 

ScuUin Steel Co. v. North Ameri- 
can Co. . . .- 69 

Scully V. Rose 687 

Seaboard E. R. Co, v. W. &.A. 

R. BT. Co ,.... 612 

Seaman v. Cook 160 

V. Harmon 777 

V. Leonardi 246 

V. Searcy 537 

Sears v. Akron 707 

V. Attorney-General. ..'... 216 

V. Grand Lodge : . . . 321 

V. Laforce 542 

v. Munsoa ; .. . 463 

V. Shafer .' 405 

Sebring v. Mersereau 613, 768 

Second Nat. Bank (Appeal of) . . 793 
Second Nat. Bank of Titusville 

W.Caldwell 669 

Second Presby. Ref. Church v. 
Disbiow.', : 137 



cliv 



TABLE OF CASES. 
[The references ar^ to the pages.] 



, Seorest v. McKenna 74 . 

Securities Co.. v. Bank 482 

D. Reservoir XUo.. . 169 
Security Trust Co. v. Goble R. R. 

Co.:.... 560 
V. Wilhamette 

Co 463 

Seda V. Huble 235 

Sedalia Brew. Co. v. S. W. W. 

Co 635 

Seechrist's Appeal 176, 368 

Seekel v. Winch 427 

Seeley v. Jago 525 

Seibert v. Seibert.". 789 

Seitjman v. Finkelstein 634 

Seif f. Muse ' 369 

Seiler v. Mohn ._. 150, 152 

Seitzinger's Estate. .'. 99 

Seixo V. Provezende. . .718, 722, 725 

Selah V. Selah. . '. ..... 396 

Seldon's Appeal 120 

SeHw. West 152 

Selleck v. Thompson. .■. 228 

Sellers Church's Petition 231 

Sellman v. Bowen 779 

Sellers V. Board of Health 703 

Sells K. Sells... t 326 

Selz, etc., Co. ». Mayer 796 

Semidey v. Central Aquirre Go. . 314 

Senior v. Rjitchard 843 

Sensinger v. Boyer 492 

Sercomb d.i Catlin 80 

Servis v. Nelson 104 

Seton V. Slade 589, 624 

Settle V. Winters 629 

Sewall V. Glidden. 432 

Sewell V. Buyck ; . . . 265 

u. Fensterer 548 

V. Wheaton. ... 419, 421, 

424, 427, 428, 431, 448, 808 

Seylar v. Carson 355, 368, 375 

Seymour, In re 413 

Seymour v, Aultman 289 

V. Darrow 272 

V. Delanoey 600, 615 

V. Dock Company .... 760 

V. Hazard 870 

V. Ricketts 767 



Seymour v. Sanf ord 136 

Seymour Water Co. v. Seymour, 752 

Shadewald v. White 171 

Shaeffer v. Chambers 268 

V. Sleade 357 

Shaffer v. Carter. 57, 669 

V. Detie 463 

V. Fetty. .' 161 

Shamwald v. Lewis 806 

Shanahan v. Kelly 101, 225 

Shand v. Du Buisson 291 

Shankland's Appeal 99, 101, 102, 110 

Shannon v. Bradstreet 331 

Shapira v. D'Arcy 354 

Sharon v. Tucker. . . . .305, 315, 655 
Sharp V. Am. Freehold and Mfg. 

Co .^ 467 

V. Bank 545 

V. St. Sauveur 109 

». Taylor 72, 429 

Sharp Co. v. Harris 496 

Sharpless's Estate 101 

Sharpless v. Welsh 120 

Shartel's Appeal 323 

Shattock V. Shattock . . . . : 186 

Shattuck V. Am. Cement Co. . . . 459 

V. Carson 859 

V. Robbins 356 

V.Watson 71, 397 

Shaver v. Heller 724 

«. Radley ^ 344 

Shaw V. Allen 750, 860 

V. BaU. ..' 398 

tf. Bauman 239 

V. Cornman 610 

V. Fisher 595 

V. Foster 589 

V. Neale 271 

V. Spencer 485 

V. Thackray ,. 396 

Shawnee Co. v. Temple 692' 

Sheafe v. Sheafe 419 

Shawano Co. Bank v. Koeppen . 426 

Sheaffer's Appeal 164 

Sheaff's Estate 100 

Shear ». Robinson 320 

Shearer v. Shearer 287' 

Sheddon v. Goodrich 500, 502, 



TABLE OF CASES. 
[The references are to the pages.] 



clv 



Sheen v. Patterson 628 

Sheet's Estate 120 

Sheetz V. Price 688 

Sheffield v. Parker 119. 

Sheffield (Earl of) v. London 

Joint Stock Bank. . .459, 465, 478 
Sheffield, etc.. Building Soc. v. 

Aizlewood 241, 409 

Sheffield Car Co. v. Constantine 

Co ." 485 

Sheffield Co. v. Sheffi«ld Co 722 

Sheffield Water Works v. Yeo- 

mans 655 

Shelburne v. Inchiquin 441 

Shelby v. Perrin '. 574 

• W.Smith V 316 

w. Tardy 153 

Sheldon v. Association 441 

V. Centre School Dist.. . 737 

W.Harding 149 

w. SiU 259 

Shelfer v. City of London Elec- 
tric Co 698 

Shelley v. SheUey 106 

V. Westbiooke. 832 

Shelly V. Brannan 710 

W.Nash 373, 375 

Sheltoti V. Horrell 68 

W.King 112 

V. Lewis, 159 

w. Piatt 669 

w. Shelton. . .. . ... 428 

w. Wallace 590 

Shena,ngo Furnace Co. v., Fair- 
field Township 57, 317, 668 

w. Pabst 367 

V. Sanford 57 

Shepard, Frank Co. v. Taylor.. . 713 

Sheperd v. Adams y . . . . . 539 

Shepherd v. Bevm. .."..... .371, 603 

W.Churchill 769 

V. MoEvers. 234 

w. Mouls 242 

w. Shepherd 602 

V. White 156, 158 

Sheridan v. Sheridan 614 

Sherk w. Endress 122 

Sherling w.Long 531 



Sherman v. Beam 613 

V. Cong. Miss. Soc.,214, 229 

W.Dodge 97, 102 

V. Prasier 443 

w. Harris 278, 296 

V. Herr'. 595 

w. Sherman 763 

w. Wright 600 

Shemer w. Spear , 70 

Sherrin v. Flinn 357, 398 

Sherry w. Dawson. .' 668 

w. Sansberry 404 

Sherwood v. Cent. Mich. Savings 

Bank 160 

Shevlin w. Shevlin. . , 410 

Shew V. Bank of Pittsburg 255 

SheweU v. Dwarris 182 

Shitelds w. Hitchman 317 

V. Lozear 253 

w. Simonton • 267 

Shiels V. Nathan >. 345 

Slump's Assigned Estate 550 

Shingle v. Smyth ." 17 

Shinkle w. Covington , 646 

Shipley w. Ritter.,. . .' . .^. 686 

Sliipmanw. .iEtna Ins. Co 294 

w. Fumiss 402 

V. Shipman 621 

Ship Warre, In re ,. .., 279 

Shipper Co. v. Adams 668 

Shirley w. Goodnough 760 

W.Shirley 181, 195 

Shirraa w. Caig 171, 272 

ShitSi w. Diffenbach. . r 579 

Shiverick v. Bonsall 403 

Shoemaker w. City 64 

w. Commissioners. . . 235 

W.Smith 150 

w. Walker 108 

Shonk w. Brov(b 188 

Sbontz w.' Brown 428 

Shook w. Southern Bldg. Ass'n. . 472 

Short V. Battle 189 

w. Mathis 443 

w. Moore. 198 

Shottenkirk w.Wheeler. 647 

Shotwell's Admrx. w. Smith 62 

Shotwell w. Lawson 59 



clvi 



TABLE OF CASES. 



^ 



[The references are to the pages.] 



Shotwel) V. Mott. . .- 213 

V. Murray 317 

V. Smith 843 

Shoup V. Cook -. . . . 750 

Shovelton v. Shovelton 139, 140 

Shredded Wheat Co. v. Cor- 

neU 723 

Shreve v. Brereton . 309 

. V, McGowin 174 

Shrimsher v. Newton. 575 

Shriver v. Garrison ^. . ,327, 443 

Shropshire Union R. & C. Co. v. 

The Queen: 84 

Shropshire v. Ryan 406 

Shubert v. Roth 733 

Shubrick v. Guerard. . . . 727 

Shugart v. Maytag. . .^ 810 

V. Shugart -. 133 

Shulte V. Hoffman 789, 790 

ShuJie's Appeal 428 

Shumaker v. Davidson 425 

Shuman v. Gilbert 653 

Shunk's Ajapeal. ^. . . . 554 

Shute «.. Heath 386 

V. Hinman 163 

w. Shute 774 

Shuttleworth v. Greaves 506 

Sibley v. Coal Co : . . . 256 

V. Holcomb .337 

SicMes V. Gloucester Manufac- 
turing Co 710, 711 

Sidney v. Shelly. .'. 163 

Siess V. Anderson 607 

Sieveking v. Litzler 352 

Sigel t). Sigel 156 

Siggers v. Evans 130 

Signor Tie Co. v. Monett Co.. . . 810 

Sigourney v. Munn^ 791, 794 

Silk V. Prime. .795, 797,798, 799, 800, 
801, 802, 817 

SiUers v. Lester -. . 281 

Sillitoe, Ex ■parte 797 

Silloway v. Neptune Ins. Co. . . . 484 

Silver Lake Bank u.. North 543 

Silverman v. Kristufek 93 

Silvers v. Potter 117 

Silvey v. Dowell 548 

Sim? V. Howard , ,- , . . . U6, 117 



Sime V. Norris 376 

Simia v. McElroy 612 

Simmons v. London Joint Stock 

Bank 466 

V. Ross 278 

V. Simmons 481 

w. State 464 

V. Tongue 795 

Simond's Estate. ., 176, 405 

Simonin's Estate 101 

Simonitsch v. Bruce 647 

Simons v. Vulcan Oil Co. ...... 413 

Simpson v. Ennis 547 

W.Hart 629, 648 

V. Hotel Company , . . . 737 
V. Simpson. . .206, 207,' 435 

V. Vaughan 747, 

Sims V. Lumber Co 611 

V. Lyle' 302 

V. Phillips .426 

». Rickets 204 

V. Sims 565 

V. Spalding 200 

Sinclair v. Jackson 2^5, 247 

Singer's Estate 375 

Singer v. Troutman 552 

Singer Co. v. Benedict. . .59, 61, 669 

W.Cooper 668, 669 

Singer Manufac. Co. v. Domestic 

Sew. Machine Co 739 

Singer Mfg. Co. i>. June Mfg. Co.. 722 
Singer Sew. Mach. Co. «. Union 

Buttonhole Cff. 730 

Sipe ». Tarentum Borough 62 

Sipley V. Wass 203 

Sipola ». Winship 352 

Sisemore v. Pelton 149 

Siter V. McClanachan 516 

Six V. Shaner 149 

Skeen v. Marri&tt 119, 120 

V. Patterson 628 

Skett V. Whitmore 115 

Skilton t). Tiffin 420 

D.Webster 63 

Skinner v. Dayton 308, 788 

V. Harrison Twp 235 

V. Judson. . . .■ .846, 847 

V, Miller 260. 



T^BLE OP CASES. 
' [The references are to the pages.] 



clvii 



Skinner v. Oakes 287, 720 

V. Tirrell 203 

Skip V. Huey ;-=~304 

Skipp V. Harwoo^ 795 

Skipwith V. Strother 378, 651 

Sklarog v. Sklaroff 386 

Skrainka v. Scharringhausen. . . . 389 

Slade V. Barlow 767 

V. Massachusetts Coal Co. 868 

V. Rhodes. 285 

Slaney v. Sidney 663 

Slater v. Maxwell. 370 

i^. Oriental ''. 162 

Slattery v. Gross 637 

Slavin v. Greever 498 

Slayback v. Witt 404 

siee V. Bloom 763 

Sleight «. Roe 172 

Slemmer's Appeal 710,- 865 

Slevin, Inre 223 

Slevin ». Brojm 103 

Slipker v. Schuchert 481 

Slimmer v. Bank >. . . 289 

Slingluff V. Eckel 355 

Sloan V. Breeden 278 

». Cadogan 127 

V. Gibbes 533 

V. Moore 865 

'». Rose 615 

w.' Sloan 859 

Sloane v. Clauss 649 

Slobodisky v. Cijrtis 289 

Slocombe v. Gluljb 435 

Slocum V. Marshall 119, 399 

V. Slocum 517 

Slocumb V. Chicago, B. & Q. Ry. 

Go! 484 

Sloss-Sheffield Steel Co. v. 

Maryland Casualty Go 846 

Sloss Steel Co. w. Ins. Co 327 

SmaU's Estate 242 

SiriaU V. Lutz 61 

Smallman v. Onions 681 

Smaltz's Appeal 590 

Smart, Ex parte 570 

Smedberg v. Mark 870 

Smick V. Beswick 67 

SmUeyf.Bell 300 



Smiley v. Wright 108 

Smith, Inre 238 

Smith's Appeal 461 

Smith's Case. 353 

Smith's Estate 125, 217 

Smith V. Allen. 572 

p.Amer. Nat. Bank 24 

V. Attersoll 120 

V. Austin 257 

V. Baker 594 

V. Bangham 611 

V. Bank 655 

V. Bate 832 

0. Bates Machine Co.. 288, 292 

V. Bell 142 

V. Bourbon Co 808 

V. Bouvier! 379 

V. Bowen 143 

«. Boyd 340,^460, 492 

V. Brotherline 407 

I V. Brown 492 

V. Burnham 24 

W.Butler 501 

V. Caldwell 483 

w. Carll 19 

V. Chadwick 349 

V. Cherrill 421, 424 

V. Chichester 171 

1). Claxton.509, 518, 519, 520 

^ W.Clay 68, 444 

V. Constant 578 

«. -Cooke.- ._ 164 

V. Countryman. . . .• 358 

V. Davis 544 

V. Dickerson 265 

V. Douglas Co -. . . 669 

B.Drake 248 

V. Dye 349 

V. East India Go 849 

V. Fletcher 483 

V. Floyd 144 

^ D. Fly 626 

V. Gardner. 684 

V. Gas Co.. . .' -. 313 

V. Graham 466 

V. Harrington -. . 98, 214 

V. Haytwell 726 

e. Heusen 809 



clvui 



TABLE OF CASES. 
[The references are to the.pages.] 



Smith tf.Hm- 496, 770 

«. Iliffe 107 

V. Ingram . . .j 494 

V. Jennings . . /; 340 

V. Kane 199 

W.Kay.... 366, 397, 400, 401 

«. Kelley ... 754 

V. Kernochen ^259 

V. Knowles 206 . 

». Leveaux 762 

p^ Low 462 

V. Lowry 648 

V. Manning^s Ex'r 256 

V. Mason. .......... .533, 534 

V. Matthews. ." 117 

V. Maxwell 106 

V. McConnell. . , 656 

V. McCrary ^. .510, 517 

». McNeal 487 

V. Miller,. 172 

V. Moors 70 

«. OHver 95 

V. Pearson 750 

V. Peters, 610 

w. Peterson 610, 620 

V. Pitts 536 

». Pond 226 

«. Poyas 680 

V. Richards '. ..348, 360 

w. Rockwell. /. 305 

V. Sackett 154 

V. Schopper 399 

-v. Schweigerer. 464 

V. Semon. 296 

V. Sheldon 605 

V. Smith. . . 158, 240, 317, 404, 

405, 435," 484, 620, 621, 

637, 655, 672, 766, 767, 

770, 771, 796, 850 

V. Snowden 405 

V. Somes 438 

V. Starr. _^ 194 

V. Stephens 543 

V. Stone 430 

V. Sturgess 606 

V. Thompson 238, 285 

V. Townshend 408 

V. Turley. .67, 68, 152, 154, 163 



Smith V. Turner 613 

V. Underdunck 620 

V. Wood 344 

Smith Co. V. American Syndicate 

723 

t). Newall 572 

Smith-Dimmick Lumber Co. v. 

Teague 807 

Smith & Fleck's Appeal 609, 681 

Smith & Wolf's Appeal 806 

Smithsonian Inst. Case 212, 235 

Smithurst W.Edmunds. 283, 643, 650 

Smoot V. Judd 648 

/ V. Rea 600 

Smull V. Jones 375 

Smullin v. Wharton 369 

Smyth V. Fitzsimmons'. 190 

Smythe v. Smythe 382 

Snader v. Slingluff 117 

Snearly v. Hiestand 861 

Sneed v. Atherton -. . . 771 

Sneider v. Bank '. 291 

Snelgrove v. Earl 328 

V. Snelgrove 453, 500, 

506, 779, 780 

Snell V. Bank 481 

V. Dwight 73 

V. Elan 154 

V. Ins. Co.. .318, 321, 324, 743 

Sneljing v. Utterback 154 

Snider v. Rinehart 648 

V. Snider 211 

Snively v. Hitechew 471 

Snook V. Snetzer 80 

V. Zentmyer 69 

Snow V. Russell 860 

Snyder's Appeal 194 

Snyder, Assignment of, In re.. . . 579 

Snyder v. Christ 424, 425 

V. Ives 328 

W.Snyder 159, 182 

V. Stemmons 361 

V. Wolford 149 

Soar V. Ashwell 113, 114,^ 145 

V. Foster 157 

Soci6t6 V. Puziello. 723 

Sociltfi G€n€rale de Paris v. 
Walker 294 



TABLE OF CASES. 
[The references are to the pages.] 



clix 



Society of the Cmcinnati's Ap- 
peal 249 

Society for Propagation of the 
Gospel V. Town of Hartland. . 102 

Soden ». (Dlaney 491 

Sohler v. Sohler. 340 

Solenberger v. Strieker 328, 420 

Solomon v. Fleming 670 

Soltau V. De Held. . . .690, 698, 700, 

704 

Somers v. Graig 182 

Somerset (Duke of) v. Ckrakson. . 595 
Somerville Com'rs v. Johnson. . . 650 

Somes V. Skinner. 403 

Sonka v. Yonkers 493 

Sonley ». Clockmakers' Co. . . . . . 236 

Sorrell v. Carpenter 471 

Souder's Appeal 755 

South, Ex parte 288 

South & North Ala. R. R. Co. v. 
Highland Ave., etc., R. R. Cq. 

601, 604, 606, 607 

Southard v. Curley 744 

South Car Co. v. Augusta Co. . . 314 
South Dakota v. North Caro- 
lina ' 59 

South Development Co. v. Silvia 

350, 750 
South Eastern R. Co. v. Brogden 

648, 761 

Southern v. How. 718 

Southern B. and L. Ass'h v. 

Page ...485, 548 

Southern Electric Co. v. State . . 389 
Southern Express Co. ». Long. . . 707 
Southern Fire Brick Co. ». Sand 

Co....^ 384, 732 

Southern Ins. Co. v. Milligan. . . 353 
Southern Mining Co. v. Lowe 

671, 677 
Southern Pacific Co. v. Bogert 

410, 444 
Southern Pacific Co. v. Robin- ,, 

son 658 

Southern Pacific R. R. Co. v. 

United States 59, 61 

Southet:h Ry. Co. v. Carnegie 
Steel Co 660, 562 



Southern Ry. Co. ». Franklin, 
etc., R. R. 

Co 606, 612 

W.Hood 484 

Southern Trust Co. v. Lucas 350 

Southern Warehouse Co. v. Oz- ' 

ment. . .' 744 

South Penn. Oil Co. v. Edgell.^ . 312 
V. Miller. . . ,61 
Southwark & Vauxhall Water 

Co. f. Quick 848 

Southwell V. Church 790 

Southwestern Surety Co. v. Wells 537 
Southwick V. Memphis Bank. . . 324 
Souverbye v. Arden. . .124, 126, 167 

Souza V. Bank ; . . . . 117 

Sovell V. Lincoln Co 424 

Sowers v. Parker 352 

Spackelford v. Collin 420 

Spackman ». Ott 429 

Spader v. Davis 426, 805, 807 

V. Lawler 272 

Spain V. Hamilton's Adm'r 294 

Spalding v. Conzleman 621 

V. Ewing 392 

V. Macomb & W. I. Ry. 

Co 689 

Spangler v. Danforth . : 591 

v. Spangler 661 

Sparhawk v. Union Passenger 

Ry. Co 64, 704 

Sparks v. Childers S31^ 

w. Liverpool Waterworks 312 

«. Tayjor 458 

Spaulding v. Harvey 549 

V. Preston 378 

V. Steel 425 

Spear v. Spear 240, 421- 

Speare Co. v. Speare 723 

Speais V. WiUis 598 

Speas V. Woodhouse 861 

Spedden v. Sykes 312 

Speed's Ex'r v. Nelson's Ex'r. . . 819 

Speer v. Banks 553 

V. Bums 150 

V. Cr3,wter 781 

W.Evans 469 

768 



Clx TABLE OF CASES. 

[The references are to the pages.] 
Speidel v. Henrici 67 



Speight V. Gaunt. 245 

Spencer's Appeal , 408 

Spencer v. Carr 485 

w. Collins 496 

(Earl) V. Peek 858 

V. LjTnan 514 

V. Sandusky 628 

V. Spencer 598 

V. School District 668 

Spering's Appeal 264, 409, 659 

Sperry's Estate 819 

Sperry v. Steenick 287 

Spioe Co. V. Iron Co 637 

Spicer v. Martin 732 

Spiegler v. City of Chicago 657 

Spieker v. Lash 725 

Spink !): Francis 654 

Spinney v. Downing 494 

Spires v. Urbahn 609 

Spirett V. Willows 421, 427 

Spivey v. HarreU 119 

Spooner v. Lovejoy 136, 140 

Sporle V. Whayman 578 

Sporrer v. Eifler 73, 377 

Spotswood V. Estes 409 

Sprague v. Jessup 610, 620 

Spread v. Morgan 506, 507 

Springer's Estate 243 

Springer v. Arundel 195 

V. Puttkamer 808 

Springfield Co. v. Warrick 314 

Springfield, etc., R. Co. v. Stew- 
ard , J 575 

Springfield Traction Co. . v. 

Dent 648 

Spring Garden Ins. Co. v. Amuse- 
ment Co 655 

Spring's Estate 101 

Springs v. Hopkins 129 

V. Sanders 589 

Sprinkle v. Wellborn 393 

Spurgeon v. ColUer 259 

Spurlock V. Brown 321, 436 

Squire's Appeal 369 

Squires v. Kimball 463' 

Srolowitz V. Rossman 385 

Staats V. Bergen 173 



Stack V. Nolte , 351 

Stackpole v. Beaumont 381, 3S3 

V. Hancock 359 

Stafford v. Van Rensselaer 

572, 575 

Stafford's Estate. . .^ 98 

Stagg ». Insurance Co 484 

V, Jackson 514, 515, 819 

Staggers v. Matthews 195 

Stahl V. Crouse 188 

Staight V. Bum 702 

'Staines v. Burton 216, 230 

Stake V. Mobley 510 

Staley v. Klett 640 

Stambaugh's Estate 101, 111 

Stamford v. Stamford Horse R. 

R. Co 691 

Standard Co. v. Brantley 303 

V. Grant 386, 387 

Standard Mfg. Co. v. United 

Sta^tes 389 

Standard Oil Co. v. Howe 669 

Standard Oil Co. of Kentucky 

V. Hawkins. .' 320 

Standard Paint Co. -v. Trinidad 

Co .' 721 

Standback v. Thornton > . . . 172 

Standley v. Roberts 662 

St. Andrew's Church's Appeal 

729, 731 

Stanford v. Stanford 341 

Stanley's Appeal 239, 403 

Stanley v. Buck 529 

V. Colt 103 

t>. Leigh. . ; 106 

V. Luse 312 

«. R.Co 689, 736 

Stanton v. Allen ^ 386 

V. Baltic Mining Co 668 

V. Hall 182 

V. Hawley 491 

V. Mfg. Co 491 

Stapilton v. Stapilton 206, 322 

Staples V. Rossi. 727 

Stapleton v. Foreign Vineyard 

-Association 716 

Starbird v. Jacobs 611 

Star Co, V. Brush 653 



TABLE OP CASES. 
[The references are to the pages.] 



clxi 



Star Brewing Co. (The) v. Pri- / 

mas 731 

Stark V. Hunton . . , 506 

I). MoGowen 336 

V. Sheffield-Slawson- 

Deeker Co 681 

Stark V. Stark Bros... . . ■ 720, 723 

Starke v. Storm 60 

Starkweather v. Jenner 175 

Starnes v. City 653 

V. Hatcher 598 

"Starr-t). Ellis 750 

tJ. Starr : 117, 860 

State V. Aloe i . . . . 61 

V. Armour Packing Co. . . . 387 

V. Assurance Co 737 

V. Baird. 832 

V. Boston & Maine R. R. . . 671 

V. Branch 489 

V. Britton 318" 

V. Campbell 267 

V. Canty 704 

». Carr 480 

r.Culhane. ._ 40& 

V. Dawson 639 

V. Dunbar 64 

t). Ellison 125 

V. Feitz 653 

V. FIint'& P. M. R. Co. . . 480 

V. Foot .' 808 

V. Freeman 429 

O.Gerard 213 

W.Griffith 217 

w. Grigsby 832 

w. Ice Co 386 

' V. LaFollette 642 

w. Lales 492 

V. Light, etc., Co 641, 642 

w. Lord 677 

V. Lovan 441 

«. McBride. . . . 65 

V. McGowen 215 

V, Mcllravy. 494 

O.Mills Co >. . 386 

0. Ohio Oa Co.... 690, 703, 872 

0. O'Leary •. ... 738 

V. Perkins 542 

«. Piatt 244 



State V. Portland Nat. Gas Co... 387 

V. Reigart ! 318 

V. Reynolds 641 

V. Roudebush 116 

0. Ry. Co. 68 

V. Standard Oil Co 389 

0. State Bai^k 160 

0. Superior Court of Mil- 
waukee 671 

V. Warner Co 68 

O.Williams 339 

V. Williamson 286 

O.Wood 653, 669 

V. Zachritz .. . .78, 692, 738 

State Bank o. Brown ' . 572 

0. Hastings 286 

State of Mississippi v. Johnson 

64, 671 
Pennsylvania v. Wheel- 
mg Bridge Co.. . . 636, 691, 
706, 707 
State Hospital o. Water Co. .^ . . . 755 
State Raihoad Tax Cases.. .668, 669 
State Savings Bank o. Montgom- 
ery .461, 493 

State Security, etc., Co. v. 

Shaffer. ... ;^ 604, 606 

Statham o. Hall 664 

Staton 0. Ry. Co 698 

Staude o. Tsoharner 285 

Stay 0. Tennille 610 

St. Clair School Board's Ap- 
peal. . ! .669 

St. Colombe's Heirs (Dubourg 

De) 0. United States 758 

Stead 0. Fortner 653 

0. Mellor '. 136, 139 

Steamboat Co. v. N. J. Steamboat 

Co , 554 

Stearns o. Hall 623 

O.Hubbard 620 

0, Marsh 582 

Stebbens o. Perry Co 859 

Steed 0. Preece 519 

Steedman v. Weeks 767 

Steel V. Brown 428 

0. Steel 180 

O.Walter 543 



clxii 



TABLE OP CA.SES. 
[The references are to the pages.) 



Steele ». Ashenfelter 580 

V. Butler ,. 541 

V, Culver 648 

V. Worthington 371 

Steer v. Crowley 626 

Steere v, Steere 117, 119 

Steger ^.Traveling Men's B. & L. 

Ass'n ,' 301 

Steiger v. Hillen 780 

Steia V. National Life Associa- 
tion..' 675 

Steinbeck v. Mining Co 174 

Steinhardt v. Baker 605 

Steinmeyer v. Seibert 597, 599 

Stembridge v. Morgan 605 

Stenglein v, Saginaw Circuit 

Judge -. 61 

Stelpflug V. Wolfe 745 

Stephano v. Satmatopoulos 721 

Stephen's and Wife's Appeal . . . 750 

Stephens, Ex parte 529 

Stephens, Inre. ., .' 517 

Stephens v. Baird 479 

V. Beal 809 

w. Black 171 

_ w. Cady 711 

' V. Dubois 68 

V. Green 295 

V. Johnson 860 

V. Ozbourne 371 

V. ParO^in 809 

«. Stephens 498, 505 

V. Texas Ry. Co 669 

Stephenson v. Atlas Co 371 ' 

V. Davis. . , 593 

V. Wilson 328 

Stephon v. Topic 344 

Stepp V. Frampton 395 

Steppacher v. Karr ^ . . . 718 

Sterling's Appeal 737 

Sterling v. Littlefield 701 

Sternberg v. O'Brien 733 

Stemberger v. Slussmann 553 

Sterne v. Beck 311 

Sterry v. Arden 423, 431 

Stett V. Lumber Co 158, 265 

Stevens v. Beekman 684, 686 

V. Castel 464 



Stevens v. C N. Bank 668 

V. Cooper 265, 539, 555 

V. Dennett 480, 48^ 

V. Moore 349 

V. Morse 468 

v. Mulligan 673 

V. Reynolds -... 170 

V. Rockport Co 704 

V. Rutland & Burlington 

R. Co 737 

V. Shippen 215 

V. Smith 476 

V. Worrill, 268 

Stevenson v. Boyd 67, 68 

V. Taverness 537 

Steward v. Blakeway 792 

V. Winters 729 

Stewart's Appeal 685, 751 

Stewart's Estate, In re 228 

Stewart v. Fairchiid 255 

V. Gordon : . .326, 744, 

745 

V. Harris 409 

V. Hook . . . : 674 

V. Kirkland 281 

V. Metcalf.^ 605 

V. Railroad Company . . 644 

w. Sample 662, 663 

B.Scott. , 258 

V. Snow 647 

V. Strewart 58, 196, 752 

V. Workman 860 

St. Felix V. Rankin 771 

St. George v Wake 434, 435 

St. Helen's Smelting Co. v. Tip- 
ping _. ... 696" 

Stifckley v. Thorn. .•. ." "... 746 

Stickney v. Bornian 204, 427 

Stiger, In re 292 

Stikeman v. Dawson 495 

Stiles V. Bradley 789 

V. Brock 747 

Still D. Spear 110 

Stillman ti. Stillman. . . ., 539 

Stillwater Water Co. v. Farmer . 704 

Stillwell V. Rankin. . . 7 637 

Stimson v. Farnham 493 

Stiner v, Stiner 393 



TABLE OF CASES. 
[The references are to the pages.] 



clxiii 



Stines v. Hays 326 

Stinson's Estate 137 

Stirling v. Burdett 534 

V. Forrester. . 331, 539 

Silk Manuf. Co. v. Ster- 
ling Sill Co 720, 724 

Stivers v. Gardner 384 

V. Tucker. 494 

Stix V. Piano Co. . '.'. . 723 

St. Catherine's Cemetery v. Trust 

Co 129 

St. James v. Bagley 137 

St. James Church v. Wilson .... 225 
Str' James Orphaii Asylum ti." 

Shelby...' : .213, 228 

St. John v: Benedict .; 600 

St. Louis V. O'NeilLumber Co. . 809 
(City of) V. Knapp.... 690 

Ry. Co. ». Faisst 689 

Ry. Co. w. Phillips 372 

S. & R. Co. v. Green. . 487 
St. Mary's Gas Co. v. Elk Co. ... 668 
Stockbridge Iron Co. v. Hudson 

Iron Co .....325, 744, 745 

Stockdale v. The South Sea Co. . 451 

». Ullery 643, 673 

Stockett V. Ryan -r 128 

Stockley v. Stockley 329 

Stocks V. Cannon r 821 

Stockton V. Union Oil Co 625 

Stockwell V. Fitzgerald .658 

». Stockwell 250, 429 

Stoddard v. Hart 579 

V. Stoddard 649 

Stoddaft V. Smith 625 

Stoeckle v. Rosenheim. ..... 320, 543 

Stoke'a Estate .^ 506 

Stokes V. McKibben 108 

V. Trust Co 160 

Stdkoe V. Cowan 426 

Stolitzky V. Linscheid 361 

StoU ». Nagle "...., 333 

StoUen V. Marks •. . . -254 

Stolze V. Milwaukee & Lake Win- 
nebago R. Co 689 

Stone V. Chisohn 810 

V. Denny "360 

V. Grasselli Chem. Co 674 



Stone V. Hackett 124 

». King 124 

V. Lidderdale 286 

V. Manning 368, 808 

V. Moonjian. 557 

V. Pentecost 350 

V. Stanley 625 

Stonecipher v. Keane 456 

Stonehewer v. Thompson 256 

Stonehouse v. Stanshaw 14 

Stonemets v. Head 350 

Stonesifer v. Kilbum 463 

Stong's Estate 248 

Stony Creek Lumber Co. v. Fields 308 
Storei: v. Great Western Railway 

Co.. ...597, 636 

^torm'». Mann 727 

Storms V. Storms 542 

Storrs V. Barker. 318, 487 

V. Scougale 394 

Agr. School V. Whitney. . 232 

Storthz V. Sanger 772 

Story's Ex'rs v. Holcombe 713 

Story V. Norwich Rd 600 

V. Windsor.- 457 

V. 'Alford .....,.' 441 

Stouff er V. Coleman 572 

Stourton v. Stourton 834 

Stout V. Allison 495 

V. Cunningham 344 

V. Vance . . . . .^ 535 

Stovall y. McCutchen 731 

Stover V. Bounds ■« . . 260 

V. Russell 628 

Stowe V. Thomas. 713 

St. Patrick's AlUance a. Byrne. . 726 
St. Paul (City of) v. Seymour. . . 163 
St. Paul & Duluth R. Co. v. 

U. S , 286 

St. Paul Division v. Brown 599 

St. Paul, Minn. & M. Ry. Co. v. 

^ Eckel 68 

St. Paul, etc., Trust Co. v. 

Leek 530 

St. Paul's Ch. V. Att.-Gen.. . 165, 166 

231 
St. Paul's Ref . Ch. v. Hower 480, 483 
St. Paul's Trust Co. v. Kittson. . 242 



clxiv 



TABLE OP CASES. 
{The references are to the pages.] 



St. Peter's ChurcK v. Brown 216, 

226, 235 

Straley v. Esser 146 

Strang v. Allen 268 

Strange v. BeU 660 

V. Richmond, etc., R. R. 

Co 608 

Strasner v. Carroll. . .• 355 

Stratheden and Campbell, In re 

Lord 217 

Strathmore v. Bowes 432, 435 

Stratton v. Bank 133 

w.'Best 505 

V. Natural Gas Co 283 

Straughan v. Wright 767 

Straus V. American Pub. Assn. 

389, 390 

V. Notaseme Co 725 

Strause v. Berger . 595 

Strayer v. Dickerson 602 

Streater's Estate 241 

Streatfield v. Streatfield 498, 503, 507 

Streeper v. Williams 308 

Street Grading District v. Haga- 

dom 63 

Streicher v. Murray 443 

Streng v. Buck Run Coal Co. ... 60 

Strickland v. Graybill 350 

Striker ». Daly. . . .' 120 

Stringer, In re 161 

Strobel v. Kerr Salt Co 642, 658 

St. Romes v. Cotton Press Co. . . 597 

Stroh i. O'Hearn 542, 549 

Strong's Estate 248 

Strong V. Blanchard 268 

». Converse 777, 778 

«. Mitchell 531 

V. Nat. Mech. Bank Ass'n 582 

V. Repide 409 

W.Williams 822, 823 

Stroup V. Stroup 435 

Struve V. Tatge 366 

Stuart's Heirs v. Coalter 782 

Stuart V. Easton 217 

V. Hayden 443 

V. Kissam 181, 182 

V. Pennis 598 

V. Sears 326 



Stuart V. Stewart Co 722 

W.Welch 661 

Stubbs V. Sargon 120, 200 

Stubinger v. Frey 406 

Studer v. Seyer. 602 

Stump V. Gaby 339 

Sturgeon v. Stevens 127 

Sturges V. Knapp 737 

wrSturges 869, 870 

Sturgis V. Champneys 200 

Sturm V. Boker 491 . 

Sturt w. Mellish 89 

Stuyvesant w. Hall^ 468 

w. The Mayor 597 

Styles w.Cuy 247 

V. Lyon 731 

Sudbury v. Merchantville B. & 

L. Ass'n 555 

Sugden v. Crossland 243 

Sulkin V. Gelbert 364 

Sullivan, In re 582 

Sullivan v. Curling ; : 287 

V. Haskin 116 

V. Jones Steel Co 696 

V. Latimer 248 

V. Moorhead - 744 

V. Portland R. Co. 

344, 443, 444 

0. SulUvan 119, 151 

w. Tuck 597 

B.Woods. 263 

Sulzner v. Cappeau 397 

Summerlin v. Cowles 752 

Summers v. Abernathy 67 

V. Bean 596 

V. Griffiths 371 

Sumner v< Powell 748 

V. Rhodes 468 

V. Seaton 485 

V. Staton 340, 342 

V. Waugh 453 

Sunday-school Union v. Phila. . 215 
Sun Dance Mining Co. w. Frost. 170 

Snnderlin v. SunderUn 207 

Superior, etc., Co. v. Mehlin. . . . 606- 

Surasky v. Weintraub 149 

Surety Co. v. Mitchell 549 

V. State 403 



TABLE OF CASES. 
[The references are to the pages.] 



clxv 



Susquehanna Mut. Fire Ins. Co. 

»., Swank 328 

SutcliS V. Isaacs 702 

Sutherland v. Parkins 608 

V. Richardson 393 

Sutherland v. Taintor 620 

Sutter V. The Dutch Church. ... 735 
Sutton v. Con. Apex Min. Co. . . 483 

V. Davis. ..1 589 

V. Miller. 605 

». Wilders 246 

Snydam v. Moore 353 

V. The N. W. Ins. Co... 807 

V. Voorhees 548 

S. V. Raiboad Co. v. Dunlop, . . 608 

Svanburg v. Fosseen 618, 622 

Swain ». Morris 701 

Swaine v. Ferine .^74, 776) 779 

Swan's Estate 533 

Swan V. Friok.' 125 

V. Patterson 646 

V. Swan 771 

V. Talbot 396 

Swan Oil Co. v. Linder.. . .' 601 

Swarthout v: Swarthout 142 

Swasey v. Amer. Bible Society. . 214 

SwajTie V. Lyon 613 

Swearingen v. Ins. Co. 77 

_ i). Steers.- 56 

Swedesboro Asso. v. Gans 320 

Sweeney v. Brow 603 

«. Horn. 510, 512 

V. Sampson 215 

V. Williams 63 

Sweeny v. O'Hara 620 

Sweet V. Parker 263, 747 

Sweetapple v. Bindon 106, 516 

Sweet Co., In re 573 

Sweeting »." Sweeting 109 

Sweetzer's Appeal ■. . . .264 

Swenzel v. Penn Bank 409 

Sweringen v. Barnsdall 760 

Swick V. Rease. .' 117, 861 

Swift's Ex'rs v. The Beneficial 

Society. 209 

Swift V. Arents 419 

V. Beneficial Society. ..... 218 

0. Castle 189 



Swift V. Winterbothajn 353 

Swigert v. TQden 385 

Swinburne v. Swinburne 153 

Swinfen v. Swinfen 238 

Swipney v. Beard 669 

Swisshelm's Appeal 171 

Switzer v. Switzer 206 

Swoyer's Appeal 240 

Syck V. Hellier 494 

Sykes v. Beadon 72 

t). Betta 575 

Symons v. Reid 650 

Synnot v. Simpson 130 



Tabor v. Bailey 159 

V. Ins. Co 322 

V. Mich. Mut. Life Ins.. 

Co 338 

Taft V. Bowker. . .' : 289 

V. Dirnond 117 

«. Hyatt 662 

Tailby v. Official Rec 280, 284 

Taite'sCase 444 

Talbert v. Singleton 470 

Talbot V. Earl of Shrewsbury. . . 833 

!;._Compher 522 

B.Hill 74 

^ ». Order of Owls 72, 726 

V. Pierce 795 

V. Roe 572 

Taliaferro v. Tahaf erro 148 

Talley v. Courtney 325 

e. Curtain 808 

V. Robinson 604 

Tallinger v. Mandeville 206 

TaUy V. Smith 371 

Talmage v. BurUngame 545 

Tanner's Estate 173 

Tanner v. European Bank 660 

B. Frink 424 

Tanney v. Tanney 170 

Tantum v. Arnold 378 

V. Green. 806 

Tappan v. Deblois 211 

W.Evans. .' 808, 809 

V. Gray 61 



clxvi 



TABLE OF CASES. 
[The references are to the pages.] 



Tapper v. Refining Co 353 

Tarabino v. Nicoli 787 

Tarn v. Turner 256 

Tarr v. Stearman 385 

«. WUliama 189 

Tarver v. Tarver 340 

Tarwater v. Going 860 

Tassell v. Smith 270 

Tate V. Pen.,.etc., Co 605 

V. Security Trust Co 297 

V. Tate 776 

V. Williamson 400, 401 

Tateum v. Ross. . 761 

Tatge V. Tatge. . .^ 118 

Tauton v. Morris 201 

Tavshanjian v. Abbott 213 

Tax Title Co. v. Denoon 860 

Tayleur, In re 858 

Tayloe v. Insurance Co 57 

V. Johnson 510 

V. Merchants' Ins. Co. . . 597 

Taylor's Estate ; 290, 379 

Taylor et al., In re. 574 

Taylor v. Adams 444 

V. Atwood 371 

«. Barker ...171, 191 

V. Benham 109, 247, 510 

V. Blanchard 386 

». Bowker 807 

V. Bryn Mawr College. . . 215 

B.Calvert 173 

V. Carroll 470 

V. Columbian University. 215 

V. Cornelius ". . 272 

w. Corp 807 

V. Duesterberg-. 426 

t). Ely 485 

V. Exporting Co .^ . 758 

w. Fields .■ 801 

V. George 139 

V. Gitt 297 

U.Harwell.-. 110 

V. Haskell 613 

V. James 156, 602 

V, Johnston 402 

«, Jones 421, 807 

V. London & County Bk. 

Co 458 



Taylor v. Longworth 628 

V. Louisville & N. R. Co. 669 

V. Meads 184, 196 

V. Mitchell 409 

w. Neate 790 

V. Patrick 32^ 

V. Pearce 685 

. V. Plumber 160 

w. Pugh..' 434, 435 

V. Roberts .*. . . 247 

V. RusseU. .69, 269, 298, 453 

V. Sauer .- 638 

V. Slater 66 

». Staples 122 

V. Stibbert 462 

^ t). Swafford. 494 

V. Taylor. . 156, 158, 398, 404, 

405, 435, 514, 521, 752, 

754, 809 

V. Times Newspaper Co.. 308 

V. U. S. Bldg. Ass'n. .... 471 

V. Van Dusen ' 532 

V. Waters 654 

• W.Welch ...,. 119 

-. V. Wheeler. 331 

Taylour v. Rochfort. 376 

Tazewell v. Smith 510, 514, 5 15 

Teal V. Walker 267 

Tebbetts v. People 7.37 

Tedford v. Wilson 283 

Tee V. Ferris 121 

Teel V. HQton 160 

Teft u. Booth. . ^ 647 

Telegraphone Corp. «. Canadian 

Co .- 314 

Telegraphone Corp. v. Telegrar' 

phone Co 594, 627 

Tel. Co. V. Davenport. .^ 597 

». Robertson. 355 

V. Telephone Co... .594, 738 

Telford ». Barney 245 

B.Brinkerhoff 648 

Teller ti. Hill 102 

Teinperton v. Russell 730 

Tempest, /« re . . . . , 234 

Templeton v. Brown 117 

V. Williams 63? 

Tenant v. Elliot' 429 



TABLE OF CASES. 
[The references are to the pages.] 



clxvii 



Tlench v. Cheese S66 

Tenham v. Herbert 656, 658 

Tenier v. /Donald 595 

Tennant v. Dunlop 410 

V. Stoney 130, 182 

V. Trenchard 175 

Tennessee Coal, etc., Co. v. 

Wheeler 265 

Tennessee R. R. Co. v. Perry. . . 491 

Tenney v. Simpson 120 

Tennison o. Tennison 204 

Tensas Land Co. v. Fleischer. . . 467 

Terhune v. Coker 351 

Terielsen v. Pat»son 205 

Terry v. Bldg. Co 662 

V. Cotton Co 379 

V. Fontaine , . 345 

». Hopkins. 433, 435 

Teschner v. Falkinwalde 596 

Teske v. Dittberner ". 620 

Tevin v. Lakes Co. v. Dohner. . . 339 

Texas v. Hardenberg 82 

Texas Co. v. Central Oil Co 611 

Tex. & Pac. R. R. Co. v. Gay. . . 868 

V. Marshall . 608 

■ Rwy. V. Inter-Trans. 

Co 701 

Texas Standard Oil Co. v. Adoue. 389 

Textor «. Shipley : . . . 860 

Thacher v. Churchill 116 

Thackwray & Young's Contract, 

In re » T 589, 614 

Thaddeus Davids Co. ». Davids. 723 

Thalheimer v. 'Lockert 463 

Thailheimer v. Brinekeroff 276 

Thames Iron Works Co. v. The 

Patent Derrick Co , 582 

Thatcher v. Omans -. . . . lt)3 

Thayer v. Bacon 489 

V. Dewey. 240 

V. Humphrey 796 

V. knote 327, 359 

B.Thayer 603 

Thebautf. Canova 701 

The City Council v. Page 460 

"^he Columbian Athletic Club 

V. State 692 

The Distilled Spirits Case 461 



Thellusson v. Woodford 230 

The King and Holland 92 

The Queen v. Shropshire Union, 

etc., Co 298,j299 ' 

The People v. Elmore 293, 294 

V. Sup. Ct. of N. Y.. 311 

V. Tioga ~ . . . 287 

Thetford School Case 208, 229 

Third Av. R. Co. v. New Yotk. . . 659 
Third Nat. Bankw.SkiUings Lum- 
ber Co 662 

of St. Paul V. 
Stillw. G. Co. 159, 160 

Thistle Mills Co. v. Bone 605 

Thomas/S A4mr. v. Lewis 132 

Thomas's A.ppeal 270 

Thomas, Iri-re 515 

Thomas v. Auditor General. ... 657 

V. Bartow 442 

V. Boyd 647 

V. Brown 206 

, V. Cronise 378 

V. Dering . ^ .' 625 

V. Elbnaker 217 

V. Evans 74 

K. Folvrell ,. :. 188 

__ V. Goodbread 355 

■ V. Grand Gulf Bank.. . . 468 

V. Heam 539 

V. Hornbrook . . . : 427 

w. Hukill 80 

V. Jacobs 703 

V. James ■ 672 

V. Merry 116 

p. Nautahala Co 687 

V. Oakley' 755 

«. Pullis....:.. 480 

V. Roberts. 832 

V. Sheppard. 393 

V. Standiford. . . .' 157 

». Thomas.. 150, 158, 300, 
829 

«. Wade. 691 

j>. Walker 146 

' V. Western Car Co. .... 562 
V. West Jersey R. Co.. . 736 

«., Williams 433 

B.Wood. .'. . . 510 



clxviii 



TABLE OF CASES. 
[The references are to the pages.] 



Thomas v. Wyse 12 

Thomas Turton & Sons ». John 

Turton & Sons 723 

Thompson's Appeal. . .160, 659, 672 

Thompson, Inre 242 

Thompson v. Allen 203, 868 

V, Allen County 63 

y. Blair. . ,. 344 

V. Bowman '. . 794 

». Brown... 209, 227^ 813 
V. Carpenter. ...;.. 614 

V. Cochran 778 

V. Davis .542, 550 

V. Derha,m 667 

». Dougherty 735 

V. Dulles 613 

W.Eastwood 320, 344 

W.Emery 289 

V. Finch 248 

V. Fisher 763 

V. Fitzgerald 533 

V. Hardy 352 

V. Hartline 159 

' W.Hudson 310 

». Insur. Co 324, 743 

V. Jameson _624 

V. Langton 789 

W.Lee 360 

w. Lewis 260, 265 

w. Murray 539, 554 

w. Pinnell 859 

w. Power Co 613 

w. Railroad Go 24 

w. Sanders 535, 536 

w. Sheplar 30 

w, Simpson 290 

w. Speirs 288 

w. Tappen 813 

w. Thompson^. ....... 427 

566 

w. Tod .624 

w. Ban Buren 647 

w. Webster 424 

W.Whipple 312 

Thomson's Ex'rs w. Norris 227 

Lessee w. White. 368, 441 

Thomson v. Adams 172 

V. Dougherty. .' 425 



Thomson v. Eastwood 320, 34^ 

w. Shakespeare 227 

W.Smith 67 

w. Thomson 429 

Thorington v. Smith 604 

Thorn w. Cann ,. 274 

Thorn Co. w. Bank 59 

Thombroughw. Baker. ^58, 259, 261, 
262, 264 

Thomdike w. Hunt 69 

Thome v. Halsey . 870 

w. Towanda Towing Co.. 760 

Thornton v. Hawley 514 

w. Knox 574 

w. Krimbel 326 

W.Stewart 306 

Thorp w. Lund. . .117, 129, 219, 249 

w. McCuUum.....^ 331 

Thorpe w.^ Jackson 747 

V. Macauley 844 

Threlkeid v. Inglett 625' 

Threlkeld v. Steward 731 

threshing Machine Co.-w. Fams- 

^worth 592^ 6ai 

Throop w. Hatch 117 

Throop Grain Cleaner Co. w. 

Smith 291 

Thropp w. PubUc Service Co. ... 60 

Thruston w. Minke 768 

Thum w. Dickinson 720 

V. Wolstenhohne, . ". . . 152, 161 

Thurber v. McMinnville « 668 

Thurmond v. Reese 805 

Thurston, Inre 129 

Thurston w. Assets Co 460 

Thweatt v. McCullough 487 

Tibbalg ». Sargent 864 

Tibbits w. Tibbits 138, 506 

Tice w. Shangle 684, 687 

Tickel w. Short 763 

Ticonic Bank v. Harvey 809 

Tidd w. Lister 200 

Tierman Exr. v. Security B. & 

L. Ass'n 160 

Tiernan w. Jackson 292 

W.Roland 591, 614, «il5 

Tiernay v. McGarity 288 

Tiffany w. Anderson 491 



TABLE OF CASiJS. 
[The references are to the pages.] 



clxix 



TUden v. Bafber r. . . 414 

«. Green 227,228,231 

Tilden Wm Case 228 

Tilford V. Bumham 809 

Tillery v. Land ' 601 . 

Tilley v. Thomas 627 

Tillinghast v. Champlin 792 

V. Coggeahall. ...... 104 

Tillis V. Lumber Co 350 

Tillmes v. Marsh. .60, 782 

Tillotson V. Mitchell 464 

Tilton V. Bader 861 

V. Davidson'' 98 

V. Hunter 468 

V. Nelson 493 

t). Tilton 617 

Timber Co. v. Wilson. . 625 

Timberlake v. Parish 505 

Timms v. Shannon ' 254 

Timon v. Whitehead 482 

Tindal v. Sublett 402 

Tindall v. Harkinson 364 

Tingle v. Fisher 288 

Tinkler v. Met. Board of Works. . 689 

Tinsley v. Anderson-. 544 

V. Lac^ 714 

V. Rice. 470 

Tipping V. Eckersley 729 

V. St. Helen's Smelt. 

Co 703, 704, 705 

Tippinsw. PhiUips 610 

Titcomb v. Morrill 167 

Title Ins. Co. v. Home Telephone 

Co 559 , 

Tobey v. Bristol. 600 

V. McAllister 574 

Tobias v. Jos. Morris & Go..484, 492 

Tobin w. White 200 

Tod V. Baylor 776 

V. Mitchell 553 

Todd's Appeal 179, 181 

Todd V. Campbell 264, 265 

V. Gee. 753 

V.Lee 190, 809 

V, Leslie 649 

V. Nelson 424 ' 

t;. Taft 595 

V.Todd 265 



Tod-lieatley v. Benham 728 

Toker v. Toker ^. 129 

Toland v. Corey 321 

Toledo, Ann. Arbor & North' 
Mich. Ry. Co. v. Penna. Co. 

etal..._^ 636, 637,668 

ToUet w. Toilet 330, 331 

Tblley v. Poteet 366, 498 

Tolson V. Tolsop 141 

Tomb's Appeal. 428' 

Tomlinson v. Harrison ^70 

V. Ward 863 

Tompkins v. Merrinian 501 

Tomson v. Judge. . . .| 398 

Toner's Estate. . .223, 225, 226, 235 

Toney v. Wendling." 158 

Tongue v. Morton 471 

V. Nutwell 75 

Tonseth v. Mraen 602 

Tooth V. Hallett 296 

Topham «. Duke of Portland. . . 438 

Topp V. Williams ; 782 

Toppin V. Moriarty 737 

Topping V. Jeanette. 744 

Torbert v. Twining 182, 

Torr's Estate 819 

Torrey v. Cameron 149 

Totten, Matter of - 124 

Totten V. United States 849 

Tourney v. Sinclair 207 

Tourville v. Naish 457 

Towar v. Hale 120 

Towle V. Leavitt 354 

V. Mack 245 

Towler v. Towler ; 144 

Town V. Needham 771 

Town of Bristol v. Bristol & War- 
ren Water Wotka 610 

of Clinton v. Town of 

Westbrook 255 

of Weston v. Ralston. . 659, 750 

Towne v. Sparks . . , 488 

Towne's Estate 101 - 

Townley v. Bedwell 524 

V. Sherborne 246 

Towns V. Smith 57 

Townsend v. Epstein :".... 702 

V. Fenton 621 



clxx 



TABLE OF CASES. 
[The references are to the pages.] 



Townsend v. Houston 621 

V. Lewis 627 

V. Vanderweker 625 

V. Westaoott 424 

V. Woodworth 495 

Townshend v. Goodfellow 613 

V. Stangroom . . 585, 616 
». Windham.... 278, 296 
Township of Boomer v., IVench 345 
of Canosia v. Grand 

Lake 534 

of Centre v. Marion 

County 647. 

Towry Law v. Burne 128 . 

Tozier v. Brown 68 

Tracey v. Sacket. 394 

Traction Materials Co. v. Pitts- 
burgh Ry. Co 562 

Tracy v. Keith 191 

Trade-Mark Cases 719 

Train Lock Co. v. Shimer 719 

Trammell v. Ashworth 364 

Traphagen v. Kirk _ 603 

Trask v. Green. 102, 805 

Trask Fish Co. v. Wooster. .720, 721 

Travellers v. McAdam 822 

Travellers' Ins. Co. v. Hender- 
son. . . ._ _ 326 

Treadwell v. Brown 795 

Treasurer v. Commercial Co. . . . 595 

Treat's Appeal 226 

Treftz B.King 26 

Tremain's Case 833 

Tremont Nail Co., Ex parte 290 

Trench «. Hamilton 135 

Trendley v. Tract Co 312 

Trenery v. Goudie 379 

Trentman v. Eldridge 494 

Trenton Banking Co. v. Duncan 482 

V. Woodruff 180, 181 

Trenton, etc., v. McKelway .... 650 
Trenton Potteries Go. v. Oliphant 385 

Trexler v. Kuntz 29, 293 

V. Miller. 340 

Tribette v. Railroad Co 657. 

Tribou t>. Tribou 410 

Tribune Assoc, v. Simonds 730 

Trice V. Comstock 169 



Trigg V. Jones's Admr 74 

V. Read 318, 322 

Trimm v. Marsh- 259 

Trinidad Asphalt Co. f.Ambard 705 
(City of) V. Milwaukee 
and Trinidad Sm. & Ref . Co. 459 
•Trinity M. E. Church v. Baker 

164, 211, 225 

Triplett V. Parmalee 681 

V. Woodward 409 

Trippe ». Lowe 805 

Trist V. Child." 290 

Tritt ». Colwell 181 

V. Crotzer 104, 115, 121 

Triumph Co. v. Thullen 608 

Trotter v. Smith , 407 

V. Trotter 202, 203 

V. Watson 420 

Trough's Estate 122, 124 

Troup V. Haight 764 

Troupe ». Ancrum 746 

Trout V. Agilvie 621 

Troutman v. DeBoissiere. . .209, 21B 

Trow V. Moody. 286 

Troxell v. Lehigh Crane Iron 

Co : . 493 

V. Silverthom 407 

Troy & Boston R. Co. -t;. Boston, 

etc., R. Co. 684 

Troy City Bank v. Wilcox 456 - 

Truax v. Aaich ; . . . 64 

Truesdail v. Ward 487 

Tniesdell v. Lehman 66 

Trull V. Eastman 373 

V. Skinner 260 

Trumpler v. Royer 813 

Trust V. Delaplaine 354 

Trust Co. V. Chappell 235 

w. City. 285 

V. Company 272 

V. Leek 530 

V. Loan Co 810 

V. Nackenhorst. . .278, 288 

- V. Nelson 173 

K. R. R. Co 868 

Trustees v. Bryson .'. . 427 

V. Carmody 226 

V. Chambers 226 



TABLE OF CASES. 
[The references are to the pages.] 



clxxi 



Trustees v. Epsom School Dis- 
trict 136 

V. Hoessli. 687 

V. School Directors 671, 677 
of Baptist Church v. 

Hart's Ex'rs 210 

of Schools V. Sheik 459 

Tryon v. Munson , 258 

Tuck V. Downmg 352 

Tucker's Appeal 100, 103 

Tucker v. Andrews .198, 433 

V. Bennett 128 

V. Burrow 157 

V. Farmers' Mul;. Fire 

Asso 597 

V. Kennislion 751, 859 

». Oxley 784, 798, 799 

V. Shaw 467 

». Thurstan._. 93 

». Wilson.....' 580, 582 

V. Witherbee :....".-... 861 

Tuckley v. Thompson 579 

Tufts V. Latshaw 160 

Tuggle V. Minor _, . ,763 

Tukey v. City of Omaha 670 

Tulk V. Moxhay 451, 732 

Tuller V. Leaverton 579 

Tullett V. Aitostrong 193 

Tunesma v. Shuttler 810 

Tunnard v. Littell 152, 154 

Tunno v. Trezevant 795 

Tunstall v. Boothby 286 

W.Coal Co 692 

Tupper V. Dart 61 

Turcan, Inre. . .^ 278 

Turley v. Thomas 595 

Turner's Settled Estates, In 

re.'. ; 439 

Turner v. Abbott 384 

W.Adams 805, 809 

V. Burrows 538 

V. City of Mobile 656 

V. ColUns 398 

V. Crowley 713 

V. Greene. : 605 

V. Harvey. 358 

V. Haupt ^1 

». Keel,,,, ,, 365 



Turner v. Kerr 264 

V. Letts 571, 579 

V. Major 786 

V. Merchants' Bank 377 

V. Morgan 770 

V. Morris 776 

«. Overall. . . . . .^ 397 

V. Petigrew 159 

f. Sawyer. .-. 170 

K.Scott..: 127 

V. Shaw 747 

V. Spooner 637 

V. Turner 399, 401 

Tumey ii. McKown! 369 

Tumipseed'w. Sirrine 622 

Turn Verein Eiche-w. Kionka. . . 628 

Turpice v, Lowe 150 

Turrill V. Davenport 138 

Turton v. Benson 296 

V. Turton 181, 723 

Tuscaloosa Ice Mfg. Co. v. Wil- 
liams 386, 387 

Tuttle V. Blow 863 

V. Jackscin 469 

Tutwiler v. Dugger 788 

Tweddell v. Tweddell 374 

Twentyman v. Simpson 223 

Twin Lick Oil Co. v. Maiv 

bury . . . 174 

Twohy Mercantile Co. v. Mel- 
bye. .. . ,. 162 

Two Rivers Mfg.'Co. v. Day. .482, 
485, 487 

Twort V. Twort '. . . . 681 

Twyne's Case.. . .418, 420, 432, 580 
Tygert-Allen Fert. Co. v. Tygert 

, Co 448 

Tyler v. Black 348, 350 

V. Lake', 182 

V. Peatt '. 807 

». Stett. ■.' 341 

w. Tuel 288 

V. Tyler 126 

a. Yates 376 

Tjree v. Williams 615 

Tyrrel's Case .95,, 103 

Tyrrell «. Bank of London. .405, 410, 
411, 415 



clxxii 



TABLE OF CASES. 
[The references are to the pages.] 



Tyson v. School Directors 336 

.». Watts 608 

U 

Udall V. Kenney 198, 201 

Uhler V. Sample 791 

Ulbricht V. Eufaula W. Co 696 

• Ullman v. Cameron. . 110 

Uhangst's'AppeaJ 736 

Unckles v. Colgate 73 

Underground Electric Co. v. Ows- 
ley 813 

Underground Ry. Co. v. Owsley. . 813 

> Underbill w. Allen 621 

V. Norwood 748 

Underwood v. Barker, 386 

V. Underwood 856 

UngleyV. Ungley 622 

Union Bank v. Baker 148 

V. Day. 75 

V. Edwards 636 

V. Munster. 606 

V. Rubenstein 463 

of London v,. Kent. . 77 

Union Canal Co. v. Young 453 

Union Coll. v. Wheeler 150 

Union' Dime Savings Co. v. Wil- 

mot 496 

Union Nat. Bank v, Goetz., . 160, 163 

^ Union Pac. R. R. Co. v. Board. . . 668 

Union Pac. Rwy. Co. v. Artist . . . 219 

V. Cheyenne 670 

V. Chicago, Rock Isl. & 

Pac. Rwy. Co. . . 586, 612 - 

V. Harris ...'.. 395 

f.-Syas 25 

* Union Railroad Co. v. Dull 752 

Union Stock Yards Bank v. Gil- 
lespie 1£2 

Union Trust Co. v. 111. Midland 

560, 562 

I V. Souther 560 

Union Water Co. v. Kean. . 738 

United Drug Co. v. Theodore 

Rectanus Co 723 

United Mine Workers v. Coron- 

ado Coal Co 392, 693 



United Security Co. v. Cent. Nat. 
Bank 460 

United Shoe Co. v. Bresnahan 

. Co 484 

V. Kimball 386 

United States v. Addyston Pipe 

& Steel Co 385 

V. Amer. Bell Telephone Co.. 3 

V. Am. Tobacco 60. 389, 390 

V. Arms 303 

V. Ash Sheep Co 57 

V. Board 668 

V. Colorado Anthracite Co.. . 75 

W.Carter ;. '. 409 

V. Coal Co 462 

V. Cocar-Cqia Co 720 

V. Colgate 392 

V. Dalles MiUtary Road. ... 68 

V. Engineering Co 308 

V. Fish Exchange 391 

V. Flint & P. M. Ry. Co... . 261 

V. Freight Assficiation 385 

V. Gear 687 

V. Hooe 271 

V. Hudson 743 

^K. KendaU 68 

V. Lee Wilson & Co 480 

V. Lehigh Valley R.'R. Co. . 392 

V. Luce 698 

V. Midway Oil Co 688 

w. Mills 324 

V. Moses 849 

V. New Orleans R. R. 

Co 283 

t». Northwest Trading Co. . . 59 

V. Oregon R. R. Co 314 

V. Osage Co 655 

V. Parrott 727 

V. Price 447 

V. Reading Co.. 389, 392 

V. Schrader 392 

V. So. Pac. Ry. Co 392 

V. Surety Co 550 

.D.Taylor 645, 550 

V. Terminal R. R. Assn 389 

V. United States Steel Corp.. 392 

V. Vaughan 293 

V. Wagner 849 



TABLE OF CASES. 
[The references are to the pages.] 



clxxiii 



United States v. Winslow 390 

V. Winston's Ex'rs 496, 547 

United States Bank v. Beverly. . ; 566 

v. Biddle 63, 344, 760 

V. Carrington 153 

' V. CentraJia 160 

V. Daniel % 323 

V. Housman -167 

u. Huth 290 

United States Fidelity Co. v. 

HeUer -. . 324 

V. Naylor . . .~ 533, 535 

United States Freehold L. & E. 

Co. V. Gallegos 685 

United States Mortgage Co. v. 

Sperry 309 

United States (President of) v. 

Drummond 215 

United States Trust Co. v. Beaty. 560 
United Zinc Co.'s v. Harwood . . . 285 

Unity Association v. King 495 

Universal Stock Ex. v. Strachan. . 379 
Universities of Oxford and Cam- 
bridge V. Richardson. ../..... 710 

University v. Caldwell 224 

University of London v. Yarrow . 214 

Unruh v. Lukens 410 

Upham V. Plankinton 610 

Up River Ice Company ». Denier. 732 

Upshaw V. Upshaw 506 

Upson Co. V. American Ship- 
building Co .^ 745 

Upton V. Paxton 761 

V. Tribilcock 357, 416 

Urch V. Walker. 236 

Urmey's Ex'rs v. Wooden 226 

Urpman w. Lowther Oil Co. .605, 606 
U. S. Voting Machine Co. v. Hob^ 

son 64 

Utermehle ». Norment 318 

Utica (Bank of) v. Finch 272 



Vacuum Co. v. Hotel Co 710 

Vacuum Oil Co. v. . Eagle Oil 

C&. 78 

Vail V. Reynolds 326 



Vallentyne v. Land Co 328 

Vallette v. Tedens 148 

Valley v. Boston Co 357 

Valley Iron Works v. Groodrick . 598 

Valter v. Blavka 128 

Van Abel v. Wemmerling 608 

Van Amee v. Jackson 140 

Van Arsdale v. Findley 424 

Vanasse v. Reid 406 

Van Bergen v. Van Bergen 636 

Van Buskirk v. Bond 699 

Vanbuskirk v. Hartford Ins. Co. . • 295 

Vance's Estate 507 

Vance ». Blair. : 785 

V. Campbell's Heirs 383 

V. Johnson 255 

u. Kirk. : 171 

Van Cleve v. Radford 365 

Vandalia Coal Co. v. Lawson . . . 655 

Vandenberg v. Palmer 126 

Vanderbilt v. Bishop 349 

Vandergrif v. Swinney 377 

Vanderstegen v. Witham 89 

Vandervelde v. Wilson .- 377 

Vandervort v. Fouse. 420 

Van Deusen v. Brown 607 

■v. Sweet 492 

Vandike's Appeal 802 

Vandivort v- Hunter 700 

Van Doren v. Robinson 610 

K.Todd 574 

Van Dusen v. Bigelow 400, 409 

Van Duyne v. Van Duyne, . 138, 498 

V. Vreeland 856 

Vandwort v. Hunter 699 

Van Dyke's Appeal... .500, 502, 507 

Vane v. Barnard 683 

V. Lord Barnard 683 

V. Vane 344 

Van Epps «.,Harrison 352 

w. Redfield \... 590 

Van Etten v. Bank 156 

Van Gelder & Co. v. Society 253 

Van Horn v. Munnell 609 

Van Home, In re 403 

Van Home v. Fonda 170 

Van Houten v. Morse 358 

Vankirk v. Patterson 629 



clxxiv 



TABLE OP CASES, 



[The references are to the pages.] 



Van Kirk v. Skillman 190 

Van Leer v. Van Lee^.^ 99 

Vanmeter v. McFaddin 469, 579 

' Van Nest v. Latson 274 

Van Pelt v. Strickland 549, 554 

Van Praagh v. Everidge 607 

Van Raalte v. Harrington 421 

Van Rensselaer v. Kearney 478 

V. Van Rensse- 
laer 57 

Van Riper v. Van Riper 822 

Vansittart v. Vansittart .... 205, 206 

Van Schoick ». Van Schoick 287 

Van Sickle v. Harmeyer 356 

Van Slochem v. Villard 352 

Van Stan Co. v. Van Stan 722 

Van Stone v. Goodwin 582 

Van Vranklin v. Roberts ^ . 654 

Van Wagenen v. Carpentei- 

169, 172 

Van Weel v. Winston 409 

Vauwinkle v. Curtis 686 

Van Winkle v. Johnson 531 

Van Zandt v. Garretson 613 

Vanzant v. Davies 154 

Vargo V. Vajo ; 67 

Varick v. Edwards .278, 373 

Vamer's Appeal 180 

Vamey v. D^skins 455 

Vairett v. Geisinger 602 

Vassar College v. Loose 714,^739 

Vason t>. Ball 254 

Vaughan v. Barclay ,. . . 78 

V. Bridgham 704 

V. Buck 200 

V. Consolidated Min'g 

Co 274 

t). Halliday 570 

' ti. Vanderstegen 337 

Vaughan's Estate 99 

Vaught V. Meador 78 

Vaux V. Parke 110 

Veasey v. Doton 365 

Veazie v. Williams 354 

Vegelaho v. Guntner. .692, 693, 703 

Veitch V. Bonding, etc., Co - 743 

Venable v. Burton 744 

Venderhaise v. Hugues 267, 260 



Venezuela Central R. Co. -(Di- 
rectors of) V. Kisch 353 

Venie v. Bank 413 

Venner v. Farmers,' L. & T. 

Co 285 

Vennum v. Darvis 644 

Ventnor City v. Fulmer 634 

Vermont, etc., Co. v. Declez Co.. 810 -. 
Vermont Marble Co. v. Mead. . . 591 

Vernon v. Vernon 135 

Verrier v. Guillpu 485 

Very v. Levy 597 

Verzier v. Convard 620 

Vetter v. Meadville 287 

Viall K. Hurley 782 

Viallet ». Ry. Co 410 

Viant's Settlement 107 

Vick». Vick.- 74 

Vickers v. Buck 421 

Vicksb. & M. R. Co. v. PhilUps. . 808 

Victor V. Spalding_. 461 

Victor Land Co. w. Drake 470 

• Vidal V. Girard's-Ex'rs..208, 209, 
210, 212, 214, 215, 217, 218, 226, 
228, 232, 235, 236 
Viebahm y. Board of Commis- 

' sioneis 691 

Viele V. Hoag 649 

Vierra v. Ropert 610 

Viers v. Viers '. . 156 

Villa ». Rodriguez 260, 265 

Villers v. Beaumont 129 

Vincent v. Corbett 360 

V. Walker 264 

Vint V. Paget 270 

Violet Nevin, In re 834 

Virginia Coal Co. v. Lambert. . . 369 

Virginia Co. v. Ehrich 810 

Virginia & Alab. Coal Co. v. Cen- 
tral R. R. & Banking 

Co 560, 561, 562 

& Alab. Min. & Mfg. 

Co. t). Hale 843, 850 

Carolina Chem. Co. v. 

Home Ins. Co 657 

Viable, de, In re 156 

Vivion V. Nicholson 569 

Vizard v. Moody 727 



TABLE OF CASES. 
[The references are to the pages.] 



clxxv 



Vizonneau v. Pegram 190 

Vogel V. Ensor 746 

V. Rawley 671 

Vogelsang v. Gray ! . . . 651 

Vogle V. Brown 531, 540 

Yokes V. Eaton 351 

VoUmer's Appeal 702 

Von Thodorovich v. Frantz 

,Josef Ass'n 723 

Voorhees v. Baily ; 174 

W.Campbell 409 

V. Cragun 352 

V. DeMeyer 613 

V. Presbyterian Church 101 

Vordick v. Kirsch 436 

Voshell V. Hynson ., 863 

Voyle V. Hughes 278 

Vreeland's Estate 234 

Vreeland v. Blauvelt 614 

V. Van Horn . . . .~ 124 

V. Vreeland 767 

Vulcan V. Myers^ 723 

Vulcan Co. v. Can Co 674 

ti. Sunmons Co.;. . . . 351 

w 

Wack V. Sorber 620 

Wacker v. Wacker 167 

Wadd V. Hazleton 127 

Waddell ». De Jet 680 

V. Frazier '. 154 

V. Waddell 160 

Wade w. American College Soei- • 

ety... 226 

V. Chicago Sp. & St. L. R. 

_R. Co 281 

V. Fisher 181 

Wadhams v. Gay. 122 

Wadsworth v. Blake 545 

Wafei'a. Mocato ■ 312 

Wager v. Link 548 

V. Wagoner. . . -. 394 

Wagg V. Herbert '. 261 

Waggoner v. Minter 326 

V. Speck 620 

Wagner v. Elliott 550 

V, Febr 342 



Wagner v. Ins. Co 190 

V. Phillips. 406 

V. Sanders 67 

Wagstaff V. Smith 103, 184 

Wahl V. Cemetery Ass'n 701 

Wainford v. Heyl 186 

Wainwright v. Read 625 

V. Talcott 619 

Wake V. Conyers 781, 783 

Wakeman v. Kingsland 662 

Walcott V. Keith 580 

V. Signaling Co 845 

Walden, In re 235 

Waldron, In re 832 

Waldron v. Simmons '62 

Waldstein v. Barnett. 403 

Wales uT Coffin...., 74 

V. Mellen. 258 

Walet V. Haskins 86L 

Walker's Appeal 217 

Walker's Estate ....... 565, 819 

Walker, In re '. 548 

V. Bohannan 601 

V. Brown . . ' 569 

». Brungard 148 

«. City 286 

V. Daly 64 

V. Davis 695 \ 

V. Eastern Counties Rail- 
way ,610 

V. Edmundson 609 

V. Farmers' Bank 260 

V. FUnt 487 

V. Gillman 614 

p. Haslett 729 

V. Hill's Exrs 71 

V. Johnson 254' 

». Kee 591 

I). Laffin 767 

II. Lawrence 386 

V. Maddox 726 

». McNelly 704 

V. Morris 813 

». Shore 237 

V. Simpson 203 

V. Syinonds 240 

V. Vaughn 283 

V, Walker 226, 245 



clxxvi 



TABLE OP CASES. 
[The references are to the pages.] 



Walker v. Wheeler 312 

Wall V. Arrington . : 617 

V. Colshead 518, 519 

V. Meilke 325 

Wallace's Appeal 543, 548 

Wallace v. Bowfens 158 

V. Coston. 1 . . 188 

V. Craig ■ 188 

«. Duffield. 159, 161 

V. Greenwood 519 

w. Hines 669 

' ». Kelly 314 

V. McCullough 160, 161 

V. Wainwright 84 

U.Wallace 599 

V. Weinsteln 810 

Walla Walla v. Walla Walla 

Water Co 59 

Waller v. Armistead 403, 433 

V. Catlett 241. 

V. Dalt 377 

Wallgrave v. Tebbs 121, 359 

Walling V. Aiken 270 

WalliAger v. Walliager 504 

Wallis V. Everard 774 

V. Freeman 791 

«. Tmesdell 491 

Wallwyn v. Lee. .453, 454, 473, 780 

Walmesley v. Booth 406 

Walpole w. Orford 609 

Walrond v. Wahorfd. . . ., 205 

Walsh's Appeal. 133 

Walsh's Estate 610 

V. Curtis 309 

ti. Goulden 409 

V. McBride ....'. 149 

V. Sprankle 66i) 

Walso V. Lattemer 124 

Walter v. Ashton 739 

V. Heller 647 

w. Selfe 698, 703 

Walter Cabinet Co. v. Russell. . . 851 

Walters v. Iron Co 165 

V. Morgan 624 

V. Northern Coal Min- 
ing Co 783 

Walton V. Atkinson.' 792 

V. Crowley 718, 725 



Walton V. Horkan 293 

V. Young 572 

WaltonGuanoCo. ». Copelan. . . 328 

Walworth v. Holt 787 

Walwyn v. Coutts 129, 130 

Wampol V. Kountz 484 

W. & S. Bottle Co. V. Gas Co. . . 606 

Wanger v. Marr 599 

Wann v. Trust Cp 360, 361, 365 

Wanner v. Snyder Ill 

WapaOilCo. v. McBride '459 

Waples-Platter Co. v. Low 423 

Ward V. Albertson. . . ." 598 

V. Amory. 198 

V. Funsten 244 

V. Lewis 130 

V. Newbold 610 

V. Ohio River R. Co 696 

V. Peloubet 130 

V. Sweeney 61 

«. Turner 133 

V. Van Bokkelen 344 

P.Ward 151, 436 

V. Wood 812 

Ward's Succession 101 

Warde v. Warde 831, 832 

Warden v. Jones 423 

V. Lyons 181 

Ware v. Mulford 399 

t>. Owens 792 

V. Richardson. 180, 181 

V. Shentz 255 

Warfield v. Kelly 313 

«. Warfield 771 

Warford v. Hankins 547 

Waring, Ex parte 570 

Waring v. Ayres 609 

V. Cram 794 

Wame v. Morgan 546 

Warne & Co. v. Seebohm 713 

Warner's Estate 435 

Warner v. Bates 139 

V. Bennett 313 

V. Daniels 371 

V. Hall 461 

V. Hastings.' 671 

t). Hopkins. . \ 659 

V, MoMulUn 83 



TABLE OF CASES. 
[The references are to the pages.] 



clxxvii 



Warner v. Moran 805 

V. Morse. . . : 161 

f . Price , . 535 

V. Realty Co 771 

V. Rice 110 

Warre (Ship), In re 279 

Warren ». Adams 77 

V. Castello. 608 

V. Farmer 798 

V. First Nat. Bank 288 

W.Haley 182 

V. Marcy 472 

V. Richmond 463 

V. Tynan ISO 

V. Westbrook Mfg. Co. . 768 
Warren (County of) v. Marcy . . . 472 
Warren & Franklin Railway Co. 

V. Clarion Land Co 641 

Warren Mfg. Co. i>. Baltunore. .590, 
601, 603 

Warrick v. Warrick 106, 461 

Warrington v. Mengel 289 

Warriner v. Rogers 126, 294 

Wartlington v. Keely 531 

Warwick Iron Co. v. Morton. . . -311 

Washburn's Appeal; 700 

Washburn o. Bank of BeUows 

Falls ,795 

V. Goodman 794 

V. Mining Co 556 

Colleger. O'Hara. . . 215 
Washington, A. & G. R. R. Co. 
' V. Alex. & W. R. R. Co. . . . 173, 243 
Washington Ry. Co. v. Real Es- 
tate Trust Co 461 

Washington University o. Green . 637 

Wajshington's Estate 117 

Wasserman v. Metzger 76 

Water Co. v. Cherryvale 611 

Waterer v. Waterer 792 

Waterman v. Alden . 249 

V. Canal-Louisiana 

Bank Co 24 

t). Dutton 325 

V. Matteson 255 

V. Morgan 131 

V. Sprague Mfg. Co. . 66 
Waterman Co. v. Mofem Pen Co . 722 



Waters v. Howard 597, 600 

V. Pearson ....'. 590 

V. Stewart 254 

V. Stickney.. . 340 

W.Tazewell. . ."^ 195, 382 

Watertown v. Cow6h 728 ■*' 

V. Mayo 670 

Wathen v. Smith 822 

Watkins v. Bigelow 225 

V. Childs '781 

V. Collins 752 

V. Gregory 264 

w. Kaohn 258 

V. Specht 113 

V. Watkins 207, 323 

V. Weston...' 121 

t). Wimams.......545, 769 . 

V. Worthington 544 

Medical Co. v. Sands. .720, 
721, 723 

Wathngton v. Howley 471 

Watney v. Wells 789 

Watson's Appeal 99 

Ex'rs V. McLaren. ... 297 n 
(Miss) Settlement. .... 192 

Watson V. Bagaley 130, 292 , 

V. Bartholomew ' 341 

V. Bothwell 340 

V. Brickwood 565 

V. Brown 365 

V. Coast 60S 

W.Edwards 260 

w. Ferrell 684 

V. Gardner. 274 

. w. Gross 314 

w. Holmes 399 

w. Hunter 680 

V. Huntington 341, 657 

w. Ins. Co.. ...... 255 

w. Jones 735 

w. Knight 485 

w. Roller Skating Rink 

Co 71 

w. Smith 278 

W.Sutherland 63, 684 

W.Wells.... 460 

Watt's Appeal 409, 444, 659 

Watters'w. R. Co . 153 



clxxviii 



TABLE OP CASES. 



[The references are to the pages.' 



Watts V. Cumminfl 350 

D. Kellar 266 

V. Newberry 163 

». Waddle 80 

Watuppa Reserv. Co. v. Fall 

* River 686 

Waugh V. RUey 274 

Way's Trusts - 128 

Wayland v. Tucker 633 

Wayman v. Jones 247, 248 

Wayne v. Fouts 525 

Waynesburg College (Appeal of) 124 

W. B. of Scotland v. Addie 339 

Weakley v. Page 703 

Weare v. Williams 459 

Weathersly v. Weathersly 264 

Weaver v. Akin 170 

«., Atlantic Roofing Co. . 289 

V. Carpenter 343 

v: Shryock 747 

V. Spurr 235' 

Webbw. Bird 702 

V. Bowman 306 

V. Handler 69 

V. Hughes 628 

V. Hunt 556 

V. Jones 565 

V. Ledsam 245 

V. London and Ports- 
mouth R, Co 606 

V. Mason 591 

V. Parks 657 

V. Rice 747 

». Rorke 260 

V. Shaftesbury 500 

V. Wools 136 

Press Co. v. Bierce. . . 386, 387 

Webber v. Gage 698, 701 

V. Hausler 546 

W.Taylor 463 

Weber v. Marshall 631 

V. Rothchild 421 

V. Weatherby 484 

V. Weitling 371 

Webster & Goldsmith's Appeal. . 545 

Webster v. Clark 808 

V. Cook 372 

V. Folsom 805 



Webster v. Harwinton 668 

y. Pole Co 689 

V. Rosanquet 308 

V. Sughrow 217 

Weckerly v. Taylor 805 

Wedgwood v. Adams 606 

Weed w. Case 349 

V. Grant ^ 643 

V. Lockwood '. . 653 

V. Pierce 420, 805 

V. SmaJl 762 

Weeding v'. Weeding 524 

Weekes' Settlement, In re 144 

Weeks v. L'Ecluse 207 

V. Robie 343 

!). Sego 192 

Wege V. Cabinet Co 597 

Wegner v. Herkimer 352 

Wehrle's Appeal 402 

Weickgenant v. Ecclea 386 

Weidemann v. Springfield Co... . 487 

Weiderhold v. Mathis 244 

Weidmann Co. v. Water Co 71 

Weigel V. Walsh ,. 686 

Weigert v. Schlesinger 158 

- Weil V. Ginnery Co 545 

V. Ricord.* 670 

Weinhagen v. Hays 752 

Weinstock, etc., v. Marks 723 

Weir D.Bell 347 

V. Crum-Brown. 227 

t). Tannehill 130 

Weir's Appeal 703 

Weise's Appeal. , 607, 621 

Weise ». Grove • 360 

Weisenberger v. Huebner ^ 618 

Weisner v. Weisner 506 

Weiss V. GuUett 291 

Weist V. Carman 371 

Welby V. Thornagh. . . ; 340 

Welch V. Caldwell 227 

V. Central >. . . 562 

V. Episcopal Theological 

School 98 

V. Farmers' Trust Co 574 

V. Mann 427 

V. Smith 304, 860 

V. Welch 203 



TABLE OP CASES. 



clxxix 



[The references 

Welland v. Hathaway 491 

II. Huber 628 

Wellenvoss o. Grand Lodge 738 

Weller v. Jersey City Ry. 

Co 287 

Weller v. Realty Co 491 

Welles V. Castles 97 

W.Yates 327, 744 

Wellesley v. Duke of Beaufort 

830, 832 

V. Momington 437 

V. Wellesley 284 

Wellford v. Chancellor 172 

Wellington v. Railroad Co 635 

Wells V. Beall 776, 779 

V, Buffalo 861 

V. Circuit 732 

w. McCaU 180, 195 

V. Pierce 62 

V. Rop« 677 

». Ry. Co 287 

». Shriver 169 

V. Waterhouse 366' 

Wells-Fargo v. Taylor. . 666 

Fargo &K Co.'s Exp. o. 

Walker 359 

Welsh w. Bayaud 631 

w. Usher 579 

Welton V. Divine 156 

Welty V. Jacobs 733 

Wendell v. Van Rensselaer 487 

Wenegar v. BoUenbach 372 

Wentworth v. Market Co 630 

Wentz's Appeal '. . 510 

Werner v. Rawson 328 

V. Wheeler 594 

V. Zierfuss 420 

Wertheimer v. Batcheller Co 720 

fi. Nyble..... 71 

w. Thomas 463, 466 

Wesco's Appeal 822 

Wescott V. Sioux City 806 

Wesley Church v. Moore. . . 63, 536 

Wesner v. Richardson 557 

West V. Bank of Rutland ...... 554 

V. Belches '648 

». Bundy 620 

V. Guaranty Co 313 



are to the pages.] 

West 0. Howard 204 

w. Ry. Co 620 

D.Walker .' 686 

w. West ...181, 188 

V. Williams 271 

Arlington Imp. Co. v. 

Mount Hope 703 

Westall V. Wood 569 

Westbrook v. Harbeson 617 

Westbury v. Simmons 297 

Westby V. Westby. . .' 323 

Westcott V. Edmunds 100 

West End Co. v. Claiborne 365 

Westennan v. Despatch Co 712 

V. Dinsmore 68 

West Pub. Co. V. Thompson. ... 713 
Western ». MacDermott. .451, 461, 
731, 732 
Germ. Savings Bank 
V. Farmers' and 

Drovers' Bank 327 

Western Land Ass'n v. Banks 

482, 491 
Pa. R. Co.'s Appeal. . . 689 
R. Co! V. Babeock. .328, 606 
Western Union Tel. Co. ». 

Douglas 59 

Westervelt v. Haff 460 

V. National Eaper Co. 674 

West Huntsville Co. v. Alter 537 

Westinghouse Co. v. BrooklsTi 

Transit Co 308 

Westinghouse v. German Nat. 

Bank 69, 459 

Westmeath v. Westmeath ...... 205 

Westminster (Bank of) v. Whyte 747 
Westmoreland Nat. Gas Co. v. 

' DeWitt.. 679, 687 

West Va. & P. R. Co. v. Harrison 

Co. Court ,... 312 

West Va. Paper Co. v. Cheat 

Mountain Club 685 

West Virginia Pulp Co. v. DodriU 781 
V. Miller 
510, 516 

Wethered v. Wethered 278 

Wetmore v. Henry 144 

v. Royal 490 



clxxx 



TABLE OF CASES. 
[The references are to the pages.] 



Wetmore v. Zabriskee 772 

Whalen v. Billings 57 

Wharton v. May 375 

Wheat Co. v. Elgin 653 

Wheatley v. Slade 625 

Wheedon v. Am. B. and T. Co. . 309 

Wheeler v. Armstrong 660 

V. Baars 360 

». CampbeU. 491,492 

t). Ins. Co 303 

D.Kidder , 156 

«;. Kirtland 150 

V. Mclntyre 685 

V. Menold 256 

V. Philadelphia. .- 669 

V. Rice 639 

V. Sage 71 

W.Smith 322 

V. Van Wart 788 

Whelan v. Trust Co 272 

V. Whelan 394, 405 

Whelen's Appeal 322 

Whelen v. Osgoodby 334 

V. Phillips 375 

Whelpley v. Grosvold 685 

Whetsler v. Sprague 117 

Whichcote v. Lyle's Ex'rs. ... 98, 102 

Whicker v. Hume 212, 215, 235 

Whilden v. Chapman 790 

WhiUock V. Grisham 860 

Whistler v. Webster 503, 505 

Whiston's Settlement 121 

Whitaker, Matter of 836 

Whitaker v. Hudson 704 

V. Robinson 605 

Whitbread v. Brockhurst 624 

Whitcher ». Witt 211 

Whiteomb v. City 288 

Whitcomb v. Schultz 25, 647 

White, In re 217 

White's Trusts 147 

White V. Booth 699 

V. C. Nat. Bank 326 

D.Cohen '.. 704 

V. Com. & Fanners' Bank 162 

V. Dougherty 674, 795 

V. Dreyfoos 717 

«. Elora 371 



White D.Fratt 67 

D.Glenn 481 

V. Hall 79 

D. Harrison 729 

D. MeUm 738 

». Moffett. ; 455, 466 

D. Nuptial Benefit Union. 380 

V. Patterson 68 

D.Poole 610, 622 

D. Eittenmyer. .' 258 

D. Schuyler 595 

D.Sheldon 154 

D.Smith 215 

V. Stevenson 325 

D.White 217, 539, 620 

V. Williams 110, 574 

Whitebread v. Smith. 748 

Whitecar's Estate 239 

Whitecar d. Michenor 638 

'White Co. D. Bullock.. '. 365 

Whitehead d. Kitson 739 

D. Peck 377 

D. Shattuck 60 

Whitehorn d. Hines 394 

Whitehouse, 7n re. , 158 

Whitehouse v. Bolster 369 

Whitehouse's Case 444 

Whiteley d. Stewart 190 

D. Whiteley 404 

Whitelock d. Dorsey 173 

Whiteman v. Perkins 628 

White Mts. R. R. Co. v. Bay 

State Iron Co 583 

White Plains v. EUis 538 

White River Sav. Bk. v. Capital 

Bank 582 

White Star Min. Co. D.Hultberg. 593 

Whitesell d. Strickler 402 

Whiteside d. Ins. Co 312 

D. Verity 128 

Whitesides d. Cannon 190 

Whitewater, etc., Co. d. Comegys 661 

Whitfield D. Hales 832 

D.Rogers 690 

Whiting V. Barney 848 

D. Burke 531 

D. Dyer. . 14? 

D. Gould life 



TABLE OP CASES. 
[The references are to the pages.] 



cbood 



Whiting V. Land, etc., Co 595 

V. Village of New Balto 308 

V. Whiting'. 143 

Whitley v. Bradley 790,-863 

V. Challis ....'. 869 

W.Ogle 152, 156 

Whitlock i>. R. R. Co 657 

V. Washburn 607 

Whitman v. Bowden 413 

V. SutetyCo 420 

Whitmore v. Brown 413, 699 

V. Shiverick 254 

V. Whitmore ; . . 625 

Whitney v. Bank 867 

tr. Day 662 

ti. Hay .' 619 

V. Holmes 491 

V. Railroad Co .• . 605 

W.Smith 242 

V. Stevens 60 

B.Stone 600 

W.Whitney 745 

Whitney Co. v. Smith 60 

Whittaker i?. Howe. . . .385, 734, 786 

Whitted w. Fuquay 590, 603 

Whittemore w. N. Y., etc., R. R. 

Co... 610 

V. Whittemore 625 

Whitten v. Jenkins 180 

w. Whitten 156, 768 

Whittick V. Kane 257 

Whittington v. Wright 495 

Whittle w. Skinner 680 

Whittonw. Whitton 768 

Whitwood Chemical Co. w. Hard- 
man 733, 734 

Whitworth w. Gaugain , 474 

w. Whyddon 863 

Whyte w. Meade 410 

Wiard w. Brown 860 

Wichita Co. w. Ralston 688 

Wick w. Bredin 314 

Wickes w. Clark 427 

Wickham w. Berry 99 

Wickliffe v. Breckinridge 471 

Wicks w. Mitchell 190 

Wickwire w. Warner 726 

^idenman w. Weniger'. ". 298 



Wieland w. Kobick 496 

Wier's Appeal 703, 705 

Wjer w. Wier 621 

Wierse v. Thomas 646 

Wiggw. .Tyler 837 

w. Wigg 457 

Wiggin w. Machine Co 68 

Wiggins w. Armstrong 727 

w. Atchison, T. & S. F. 

R. R. Co '.... 668 

V. Bisso 73 

Wigram v. Buckley 472 

Wilbur w. Flood -..:.•.... 343 

V. Reed 689 

' w. Toothaker 605 

Wilcocks w. Wilcocks 77, 820 

Wilcox w. Bates 265 

W.Hill. 460 

V. Howell 497 

w. Leominster Bank 463 

w. Ryals 726 

w. Wheeler 684 

W.Wilcox 792 

wade w. Fort ?26 

w. Fox 620 

V. Trust Co 361 

W.Wilde....' -. . 205 

Wilder w. Keeler 799 

w. Ranney 516 

w. Wilder. . 116, 156, 158, 547 ' 

Wilen's Appeal ^ 323 

Wiles w. Shaffer ' 458 

w. Wiles 198 

Wiley w. Bird 861 

w. Ewing 266 

Wiley's Ex'rs Appeal 591 

Wilhehn's Appeal: 57 

Wilhite V. Roberts 285 

a Wilhite 745 

Wilkes w. Holmes 331 

w. PhiUips 443 , 

V. Spooner 466 

Wilkie V. City of Chicago . , 658 

Wilkin w. City of St. Paul 689 

V. Wilkin 767 

Wilkins w. Evans 627 

w. French 258 

W.Gibson., ,..543, 550 



clxxxii 



TABLE OF CASES. 
[The references are to the pages.] 



Wilkins v. McCorkle 469 

Wilkinson v. CoUey 309 

V. Dent 505, 506 

D.Getty 330 

V. Searcy 486 

». Stitt 597 

t). Tousley 378 

Co. V. Mcllquam .... 691 

Wilks V. Fitzpatrick.^ 198 

Willard's Appeal. 856 

Willard v. Denise . . . . ' 461 

«. Eastham 189, 191 

wltayloe 74, 600, 603 

WiUcox V. Consol. Gas Ck) 671 

Willei). Wille 395 

Willett V. Sandford 96^ 

V. Winnell 260" 

William v. Cow Co 609., 

Nicoll, Jnre 836 

WilUams's Appeal 99, 203, 439 

Williams, In re 813 

Williams v. Avery 182 

jr. Baily 205 

V. Baker 494 

». Bayley 396, 397 

V. Beard 258 

V. Beazley 358 

■W.Bradley 354 

W.Brown 146, 808 

w. Callow 202 

V. Canary 403 

V. Carle 433 

w. Carty 620 

V. Champion 321 

V. Chapman 283 

V. Chicago Exhibition 

Co 682' 

V. Claiborne. 181 

V. Committee 139, 141 

V. Coombes 772 

V. Cow Co. . -. 589 

V. Craig 539 

V. 'Davis 425 

V. Davison's Estate . . . 403 

V. Dutton 670 

V. Evans 620 

t). Fitzhugh 377, 751 

V. Floyd 160 



Williams v. Fowler 60 

w. Fry , 594 

V. Green. 311 

V. Haddock 515 

V. Hollingsworth 153 

V. Johnson 725 

W.Kemper . . .111, 424 

w. Kershaw 227 

w. Knight 507 

w.Lambe...-.447, 454, 780 

w. Leech 98, 102 

V. Lobban 522 

■ V. Medlicot ; 579 

V. Neely 67 

w. Overholt 557 

w. Pearson 226 

w. PUe 649 

• w. Roberts 164, 575 

w. Savage Mfg. Co. 

(The)... 375, 763, 764 

w. Speer 637 

w. Sprigg 464 

w. Spurr 358 

V. Stratton. . . .* 579 

w. Trust Co 163 

w. Wager 146, 152 

w. Waters 181' 

w. Wiggand 767 

W.Williams.. 146, 157, 211, 

254, 258, 404, 405, 456, 

■ 460, 513, 674 

Williamson w. Berry 829, 835 

w. Brown. .458, 459, 464 

. ». Dils. 606 

W.Harris 350, 365 

w. Krohn 409 

w. Lowe 429 

w. New Jersey South- 
ern R. Co 281 

w.WUson... 789, 790,865 

Williamsport w. R. R. Co 287 

Williard w. Williard 119 

Williman w. Hohnes 182 

Willing w. Peters 525 

Willis v: Chapman 789 

V. Gattman 325 

w. Henderson 316 

V. Jernegan ; 763 



TABLE OF CASES. 
[The references are to the pages.] 



clxxxiii 



Willis V. KjTner 143 

V. O'Connell 739 

" V. Robertson- 149 

». Willis 153 

Willoughby v. Middleton. . .498, 507 

V. Moulton 543 

Wills's Appeal 240, 403 

Wills V. Coal Co ". 344 

V. Slade 766 

V. Wood 443 

WiUson V. Mayor of Balti- 
more 312 

Wilmarth v. Woodcock 700 

Wiliner v. Farris 621 

Wilmes v. Tiemay 217 

Wil. & Bait. R. R. Co. v. Woelp- 

per 283 

Wihnore Coal Co. v. Holsopple . . 700 

Wilmot V. Maccabe 844 

f. Pike 453 

Wilner v. Ruckner 159 

Wilson, In re 223 

Wilson Estate 210 

Wilson V. Anthony. 444 

V. Amy 506 

o^Blaine 27, 856 

V. Carpenter 362 

V. Gather 700 

». Daniel 432 

V. Day 409 

V. Drumrite. .' 260 

V. Fire Alarm Co 806 

V. Getty 750 

V. Hart. . .451, 462, 732, 781 

v.B.ey. ., 692 

D.HiU.. 687 

V. Himdley 442 

V. Ivy 345 

V. Jones 116 

V. Joseph 80 

V. Lank 764 

V. Linder 541 

W.Love 308 

._ V. Lumber Go 790 

B. Mallett... 760, 762 

V. Meyer. 356 

V. Moriarty 750 

V. New Orleans. ....... 286 



Wilson V. New U. S. Cattle 

Ranch Co 345 

V. Northampton & Ban- 
bury Junction R. Go. 848 

V. O'Leary 824 

w.Ott 319^ 

V. Patrick. . .'. 263, 264 

V. Plutus Mining Co 572 

V. Read 739 

V, Roots 757 

V. Russell 271 

». Smoot 249 

V. St. L. & W. Ry. Co. . 285 

V. Troup 169 

». Trust Co 181, 182 

V. Vogel 614 

V. Williams 615 

v. Wilson. .205, 206, 249, 281, 
436 

Wiltw. Grim 341 

V. Hoffman. 279 

Wimer v. Smith '. 364 

Wimpfheimer v. Perrine 285 

Winbigler v. GUft 700 

Winch's Appeal 672 

Winchell v. Circuit Court 703 

». Edw;irds 482 

Winchester t)."Mabury 810 

V. Machen 195 

Windfall Mfg. Co. v. Patterson. . 701 

Winebrenner v. Colder 737 

Winfield v. Bacon 649 

V. Bowen 598 

». Gas Go 652 

Wing V. Cooper 264, 265 

Wingate v. Dail 620 

Wingerter v. Wingerter 368 

Wingfield v. Crenshaw 701 

Winifrede Coal Co. v. Board of 

Education 668 

Winkler «. Jernie 350, 366 

Winn V. Lippitfcott (The) Co.. . . 674 

W.Strickland 860 

Winne v. Winne 598 

Winner v. Schucart 821 

Winnett v. Adams 64 

Winslow V. Gummings 216 

». Leland 807, 813 



clxxxiv 



TABLE OF CASES. 



[The references are to the pages.] 



Winslow V. Young 150 

Winston v. Bruin ' 74, 607 

V. Gwathmey 366, 660 

V. Miller 163 

Winter's Appeal 365 

Winter v. Goebner. . . . ; 602 

V. Lord Anson 574, 575 

V. Ludlow 16 

Wintermute v. Snyder. . . ...318, 371 

-Winters v. Fain 571, 576 

Wiijithrop Co. V. Clinton Ill 

Winton v. Hart 483 

Wintour v. Clifton. . . > 406 

Wirsching v. Grand Lod^e. .325, 327 

Wisdom V. Wisdom 162 

Wise V. Perpetual, etc., Co._. . . . 245 

V. Shepherd 556 

V. United States 308 

Wiseley v. Findley 764 

Wiseman v. Tanner . . ; 692 

Wiser v. Lawler 485 

Wistar's Appeal. .242, 244, 323, 398, 
408, 607 

Wistar v. McManes '. 643, 845 

Wiswall, Chas. E., The 72 

Wiswall V. McGown 57 

Witcop V. Boyce . ■ 674 • 

Witczinski v. Everman 272 

Witham v. Brooner 102 

Witherell v. Kelly 491, 492 

V. Wiberg. . . . , 254 

Witherington v. Herring. . . . 129, 134 

Withers v. Carter. 556 

V. Yeadon 143 

Withroder v. Elmore 413 

Withy V. Cottle -. 595 

Witkop V. Boyce 674 

Witkowsky v. Affeld 728, 734 

Witman v. Lex. . .^10, 211, 225, 226 

Witmei's Appeal 727 . 

Witt V. Carroll 164 

W.Day 344, 403 

V. Sims 751 

Wittel V. Wittel ^ 770 

Witter V. Richards 795 

». Witter 89 

Woddrop V. Weed 70 

Woelpper v. Penna. Water Co . . 642 



Woerz V. Rademacher 158 

Wofford Co. zr. Smith 59 

Wolcott V. Doremus 690 

». Robbins 782 

Wolf W.Corby 118 

V. Gegenseitige 737 

V. Great Falls Water Co. . . 67 

Wolfe V. McMillan •. . 264 

V. Scafborough 781 

Wolff's Appeal 119 

Wolflnger w. FeU 99 

Wolford V. Famham 117 

V. Herrington 368 

Wollam V. Heam 266 

Wollaston v. King 504 

w. Tribe 129 

Wollstonecraft, Matter of 832 

Wolmershausen v. GuUick 534 

Wolters V. Shraft 147 

Wolverhampton, etc., R. Co. v. 

London, etc., R. Co 636, 731 

Womack v. Austin 403 

Women's Christian Ass'n v. Kan- 
sas City 221, 321 

Wonderly D.Lafayette Co.. .647, 667 

,Wonson v. Fennon 606, 754 

Wood's Appeal , 459, 478 

Estate 98, 291 

Ex'rs V. Dialogue 285 

Wood V. Barker. . . .^ 430 

V. Blany'. 482 

i). Burnham 105 

V. Cone 518 

V. Cox '. 120 

V. Dodgson 549 

V. Downes 407 

y. Goff 343 

V. Guarantee Trust Co. . . 559 

V. Leland : 534 

V. Lewey 470 

V. Little 764, 770 

V. Mann 453 

V. Patterson 328 

V. Potts 423 

ti. Seely 496 

V. Shepherd. 600 

V. SutcUfle 698 

V. Telephone Co 595 



TABLE OP. CASES. 
[The references are to the pages.] 



clxxxv 



Wood V. Trask 254 

V. Union, etc., Association 750 

V. Wood 443, 832, 861 

Woodard v. Woodard 171 

Woodbridge v. Perkins 295 

Woodbury v. Turner Mfg. Co. . . 308 
Sav. Bank v. Ins. 

Co 326 

Woodcock V. Bennet 754 

Woodhouse v. Crandall 162 

Woodhurst v. Cramer 325 

Woodlee v. Burch 171 

Woodman v. Frefeman 62, 754, 

341, 630 

Woodmen v. Miller. ^ 460 

Woodruff V. Jabine 355 

V. March 231 

u. Marsh 226 

V. Warner 356 

V. Water Power Co. . . 587 

V. Wilhams 344, •845 

V. WSodruJBE .•> 235 

Wtfodsj^. Fannere .460, 468 

V. Gamett 468 

». HaU , - 354 

V. Hilderbrand. . ., . .255, 258 

V. Irwin 169 

V; Monroe-. 658 

».. Wallace 260 

^ P.Ward. 148 

^ W.Woods 861 

Woodside v. Lippold 328 

Woodson V. Hopkins 73 

Woodward v. Harris 611 

V. Lazar 718 

V. Miller 354 

V. Parsons 258 

y. SchalzeU :.. 869 

w. Woodward. .. .62, 156 
Woodworth V. Van Buskerk. . . . 647 

Woodyear v. Schaefer 703 

Woolfit'?). Histed 121 

Woollam V. Heam 440, 441, 

607, 616, 617, 618, 745 

Woolmer's Estate 165 

Woolridge v. Norris 537 

V. Woolridge 503 

Woolston V. PuUen 771 



Woolworth Co. v. Nelson. ..... 681 

Word V. Davis 318 

Wordehoff v. Kepper 686 

Worden v. California Fig Syrup 

Co 720 

Work V. Bank 272 

V. Brayton 676 

V. Harper 468 

V. Welsh 1 610 

World's Columbian Exposition 

Case 64, 218, 653, 738 

Worley v. Carter 265 

». Tuggle.^ 318, 325 

Wonnald v. Maitland 469 

Wormley w. Wormley 739 

Worrell's Appeal. 240 

Worrell v. The Church 643 

Worseley v. De Mattos 448 

Worseley v. BurUngton Ins. Co . -326 

Wcrsley v. Scarborough 470 

Worth V. McAden 247 

». Watts. 604 

Worthington, In re 286 

Worthington v. Miller 861 

■ V. Scribner 849 

V. Tormey 582 

V. Waring 739 

,». Wiginton 506 " 

Wdrthy v. Tate 305 

Woteshek v. Neuman 461 

Wotton V. Copelaiid 768 

Wray v. Wray 396 

Wren v. Coolsey 608 

w. Kirton 239 

Wright V. Amann. . 785 

V. Astoria Co 627 

V. Atkinson 639 

' «. Atkyns 139 

». Brooks 620 

V. Brown 188 

V. Buchanan 572 

V. Carter 403, 406 

, ». Ellison 292 

V. Grover 544 

V. Gully 366 

, V. Hunter 533 

V. Maidstone 306 

V. Marsh 764 



clxxxvi 



TABLE OF CASES. 
[The references are to the pages.] 



Wright V. McCord 482 

V. MiUer. . .- 124 

i».-. Pearson 104, 121 

V. Pucket 619, 621 

V. Rose 523 

V. Shanahan 689 

V. Snowe. < 495 

V. Superior Coufi; 843 

V. Suydam 611, 631 

V. Tatham 858 

V. Trustees of Methodist 

Episcopal Church . . 518 

V. United States 343, 452 

V. Vanderplank 398, 399, 

404, 518 

V. Wright 154, 156, 157, 194, 

278, 281, 373, 518 

Wrightsman v. Rogers. ...... 146, 150 

Wrightsville Hardware Co. v. 

McElroy .' 74 

Wrigley «. Cab Co 637 

Co., Wm., V. Grove 721 

Wulbem V. Timmons 162 

Wulff V, Superior Court 791 

Wunderle v. Ellis 256 

Wurtz V. Page 515, 516 

Wyandt v. Merrill 278, 283 

Wyatt V. Barwell _. 469 

V. Watkins 279, 283 

Wyche v. Greene 601, 747 

Wyckoff V. Howe Scale Co 723 

Wylson V. Dunn 609 

Wynkoop v. Cowmg 260 

Wynn v. Brooke 533, 536 

V. Newman 646 

Wynne v. Jackson 652 

V. Price 595 

w. Tunstall 771 

Wy thes v. Lee 577 

X 

Xenia R eal Estate Co. v. Maoy . . 730 

Y 

Yale V. Dederer 189, 190 

Yale Gas Stove Co. v. Wilcox, , , 412 



Yancey !;.. Field 133 

Yarborough v. West 131 

Yard's Appeal 230 

Yard v. Patten 122 

Yamall's Appeal. .99, 100, 103, 105 

Yates W.Jack 640, 641 

tt. Stuart 759, 760 

ti. Tisdale 662 

V. West Grafton 736 

K.Yates 263 

Yaukey v. Forney 460 

Yeackel v. Litchfield. . . 170, 173, 174 

Yeager v. Woodruff 486 

Yeates v. Groves^. 289 

Yee Hop v. Colbum 686 

Yeiser v. VS. S. Board & Paper 

Co 414 

Yellowstone Co. v. Savings Bank 160 

Yerkes v. Perrin's Estate 117 

Yonge V. Reynell 531 

Yonkers v. Refining Co 642 

York V. Gregg 360 

York Park Building Assoc'n v. 

Barnes. 48S 

Yost V. Devaull 609 

Youle V. Fosha 364 

Youpg, Ex parte 692 

Young V. Allen '. •. . 158 

t). Biehl. 501 

V. Bumpass. . . » 359 

V. Burton 596 

V. Crawford 619 

V. Frost 625 

». Graff. 189 

W.Holland 117, 156 

W.Jordan 607, 608' 

V. Martin 14D 

w. Rothrock 691, 704 

w. Snow , . . . 84 

w. Vough 484 

j>. Wood 574 

W.Young 183, 189, 564 

Younger w. Hoge 364 

Youngman w. Blmira R. Co . 255, 258, 

472 
Young Men's Society w. Fall 

River 213 

Youngs V. Weddlespoon 430 



TABLE OF CASES. 
[The references are to the pages.] 



clxxxvii 



yount 0. Yount 395 

Youse V. McCarthy 67 

Youst ». Martin: 457 

Yovatt V. Winyard 674 

Yidew. Yule r 202 



Zahn V. McMillin ; . 358 

Zartman v. Waterloo Bank. .... 324 

Zekendorf v. Shelton 409 

«. Steinfeld...... 169 

Zeiger v. Stephenson 726 

Zeigler v. Savings Bank 410 

Zeiser v. Cohn. . ." 82, 569, 572 

Zeisweiss t>. James.'' . . .217, 225, 228 

Zempcl V. Hughes 371 

Zenith Co. v. Stromberg Co 67 

Zerbe v. Miller 420 



Zevely v. Weimer 671 

Ziegler v. Long 556 

Zimmer v. 'Thompson 869 

Zimmerman v. Barbpr 153 

w. Bitner 399 

V. Davis 285, 384 

«. Franke 80 

V. Harding 788 

V. Makepeace 673 

V. Rhoads 610 

V. Streeper 103 

Zinc Co. t). Pranklinite Co 699 

Zinkeison v. Lewis. . ■? 344, 546 

Ziska V. Ziska. ' . . . 809 

Zollman v. Moore' 320, 453, 473 

Zuchtmann v, Roberts 480 

Zundell v. Gess -.152, 161 

Zunkel v. Colson 159 

Zwingie v. Wilkinson 574 



THE 



PRINCIPLES OF EQUITY 



INTRODUCTION 



CHAPTER I 

RISE AND PROGRESS OP THE HIGH COURT OF CHANCERY ' 



3 



1. Definition of equity. 

2. Importance of the historical view 

of equity. 
Early English courts; the councils 

of the king. 
4. Ordinary council, or curia tegis; 

Exch^uer and Common Pleas. 
6. Court of King's Bench. 

6. Position of the chancdlor. 

7. Origin of his extraordinary juris- 

diction. 
Cases in which this jurisdiction 

was exercised. 
General conclusions deduced from 



8 



g 



the above — writ of subpcen* — 
pleadings and evidence; 

10. Progress of the jurisdiction of the 

chancellor. 

11. Changes in the English system 

introduced by Act of August 6, 
1873. 

12. Principles of equity adopted in 

the United States. 

13. Jurisdiction of the federal courts. 

14. Changes of mode of procedure in 

some of the states. 

15. Classification of the states upon 

this subject. 



1. Definition of Equity. 

" EQinTY is that system of justice which was administered 
by the High Court of Chancery in England in the exercise 
of its extraordinary jurisdiction. 

This definition is rather suggestive than precise; and in- 
vites inquiry rather than answers it. But this must nec- 
essarily be so. Equity, in its technical and scientific legal 
sense, means neither natural justice nor even all that portion 
of natural justice which ia susteptible of being judicially 
1 1 



2 RISE AND PBOGRESS OF THE [CH. I. 

enforced. It has, when employed in the language of English 
law, a precise, definite and limited signification, and is used 
to denote a system of justice which was administered in a 
particular court — the nature and extent of which system 
cannot be defined in a single sentence, but can be understood 
and explained only by studying the history of that court, 
and the principles upon which it acts. In order ,to begin to 
understand what equity is, it is necessary to xmderstand 
what the English High Court of Chancery was, and how 
it came to exercise what is known as its extraordinary juris- 
diction. Every true definition of equity must, therefore, 
be, to a greater or less extent, a history.^ This history was, 
in a certain sense, rounded and completed by the passage 
of the "Supreme Court Judicature Act of 1873," and its 
■amendments, whereby the judicial system of England has 
been recast, and the distinction between courts of equity 
and coiu-ts of law abolished.^ By that act it. was, in sub- 
stance, provided that, after the second day of November, 
1874, the administration of justice in all courts should be 
regulated by the principles of equity; and its passage, not- 
withstanding the mahy difficulties which arose in carrying it 
into practical effect, may be considered as the final triumph of 
those principles, after a struggle of many centuries' duration, 
and as a full recognition of their usefulness and expediency. 

2. Historical view important. 

Nor is this historical character of the definition of equity 
any the less to be regarded in the United States than in Eng- 
land, r 

In the federal courts the limits of equitable jurisdiction 
are to be ascertained by reference to the boundaries within 
which the powers of the English Court of Chancery were 

• So, also, the JEguitas of the Maine's Ancient Law, chap. iii. The 

Roman law can only be defined by eaftie author describes or defines 

tracing the history of that law. It is English equity as the "jurispru- 

almost as incapable of definition in dence of the Court of Chancery," 

a single sentence as the English Id. 44. 

"equity," with which, ]>y the by, it '36 and 37 Vict. c. 66; L. R. 8 

■hould not be confounded. See Stats. 306. 



CH. I.] HIGH COURT OF CHANCEBY, 3 

exercised; and that this rule is of a practical, and not merely 
of a theoretical, importance is most strikingly illustrated by 
a decision of the Supreme Court.' 

As to the state courts, in some states of the Union the 
principles of equity are administered through the medium of 
common-law or statutory forms; * in some, the common-law 
Judges act also as chancellors;' and in a third class courts of 
chancery (by that name) exist. All of these look for their 
guidance to the principles which were developed in the Eng- 
lish Court of Chancery,' and the first inquiry of the student 
in this branch of law must always be directed to^ the origin 
and growth of that tribunal, and the character of the rehef 
which it administered. 

3. Early English Courts; King's Councils. 

To appreciate the nature of this equitable relief, and the 
reason why redress of this peculiar sort came to be afforded 
by the chancellor, we must look, for a moment, at the general 
system of English remedial law as it existed in early times. 

According to the plan which was established after the Nor- 
man Conquest, the local tribunals which had existed under 
Edward the Confessor, and which consisted of the county, 
hundred, and borough courts, together with the manor 
courts and courts baron,' were retained; but the supreme 
judicial (and, indeed, all other) authority was vested in the 
king, assisted by his councils. 

These councils were two in mmiber — the great council, 
afterwards called the Parliament, and the small or ordinary 
council, which advised the king during the intervals between 
the sessions of the great council, but which appears to have 
formed part of the latter when in session.* 

> United States v. American Bell been, in some instances, of a personal 

Telephone Co., 128 'U. S. 315, and character. See remarks of Chief Juo- 

the opinion of Mr. Justice Miller on tice . Shippen -in Levy v. Bank of 

pp. 359-360-361. United States, 1 Binn. 27, 37 (Story's 

» See Pollard B. Shaffer, 1 Dal. 230;- Bq.^Jurisp., 5130, note 1), as to 

Jordan v. Cooper, 3 S. & R. 585; what he had heard Lord Hardwicke 

Church V. Ruland, 64. Pa. 441. say. 

' This cuidance may be said to have ' See 1 Spence Eq. 328, and notea 



4 RISE AND PROGRESS OF THE [CH. I. 

The great council was composed of the bishops, earls, and 
barons, and such knights as held of the king in capite. Its 
duties were perhaps as much judicial as legislative, and in 
both branches its action was advisory rather than potential.* 
The king, in fact perhaps, and certainly in theory, enacted 
laws and redressed particular grievances (of which complaints 
were made by petition) witK the advice and assistance of 
the magnates of the realm; and although modern English 
legislation has departed widely from the ancient in substance, 
its theory is in this respect still the same, and statutes are 
still supposed to owe their existence to the will of the sov- 
ereign after taking the counsel of^ Parliament; that is, the 
sovereign is assumed (by the language of all acts of Parlia- 
ment) to enact laws, the lords and commons consenting to 
the enactment. 

It is unnecessary to trace the growth and powers of the 
great council. To it, indifferently with the smaller council, 
was formerly applied the name of curia regis — a term which 
was subsequently used to designate the latter council only, 
and the meaning of which was afterwards still further nar- 
rowed so as to apply to the Court of King's Bench alone. 

4. Ctiria regis; Exchequer; Common Pleas. . 

The ordinary council of the king was composed of such 
barons of the realm as were selected by him; certain officers 
of the palace, such as the constable, marshal, chamberlain 
and others; and to these were afterwards added persons 
learned in the law, who \vere styled justiciarii, together with 
others sometimes specially summoned by writ from the 
chancellor's office.^ 

This council was the great judicial centre of the kingdom, 
from which all justice emanated; not that the council had, 
as a body, in the early stage of its existence, the attributes 
of a court; but simply because the supreme authority, in- 

' "Generally speaking, indeed, as appears to have required." 1 Spenoe 

regards all matters besides taxation, Eq. 266. 

it was the advice even of the Lords • 1 Spence Eq. 329; 1 Foss's Judged, 

rathw than their assent that the king 10. 



CH. ij HIGH COUKT OF CHANCHHT. 5 

eluding the supreme judicial power, was vested therein.' 
The term curia regis, as applied to the council, was used in 
the sense of the royal residence or household, frequented by 
the nobles and magnates of the reahn', where the king some- 
times sat in person with the chief justiciary and chancellor, 
attending (among other things) to complaints of grievances, 
which were originally solely as to revenue.^ The same term 
(curia regis) was appHed to the county courts, but in a dif- 
ferent sense, as they were the king's courts of justice.* The 
curia regis, or council, appears to have become in the reign 
of Henry I. the regular court of ultimate appeal from all the 
courts of ordinary jurisdiction.* Out of this royal court, 
or council, courts of justice (properly so called) of original 
jurisdiction gradually arose, and their origin and nianner of 
growth appear to have been bipiefly as follows: 

The oldest court (in -the strict sense of the term) whose 
existence can be distinctly traced is the Exchequer.* The 
Exchequer was originally only an office, ordained for matters 
of the king's revenue; and where, subsequently, two knights 
(or barons), two clerks, and two men learned in the law, 
were assigned to hear and determine these matters. The 
persons so assigned were styled Barons of the Exchequer, the 
term employed until a very recent date. In process of time 
common suits, i. e., suits between subject and subject, came 
to be brought in the Exchequer, perhaps because it was felt 
that justice could be more impartially and learnedly ad- 
ministered by the Barons of the Exchequer than in the or- 

' "The curia regis," says Mr. translated for the American Law 

Spence, speaking of the time of Glan- Review of October, 1873, vol. viii., 

ville (a. d. 1179-1180), "can hardly No. 1), but his conclusions upon this 

yet be considered as designating a point seem to be sound. *See alio arti- 

distinct judicial tribunal; concilium cle in Edinburgh Review, vol. 35, 

and curia are sometimes used as syn- p. 11. 

onymous even by Bracton." 1 ' ' 1 Reeves's Hist. Eng. Law, 84, 

Spence Eq. 119, note &. and note. 

• 1 Reeves's Hist, of English Law, * 1 Spence Eq. 107; 1 Foss's Hist. 

85, Finlason's note; 1 Spence Eq. Judges, 9. 

102. Mr. Finlason's notes toTReeves » Edinburgh Review, vol. 35, page 

have been very severely criticized 11; notes to Reeves's Hist. Eng, Law, 

(aee a notice by Heniich Brunner, vol. 1, page 85 (Finlaoon). 



6 KISE AND PBOGRESS OF THE [CH. I. 

dinary county courts.* Now, the court or household of the 
king was, It will bfe remembered, ambulatory; it accompanied ' 
the king in his journeys, and business, both legislative and 
judicial, was transacted at the different places where the 
court happened to be held. This, as is well known, was the 
occasion of great inconvenience so far as common suits or 
pleas were concerned, as the suitors were thus obliged to 
travel to different parts of the kingdom in order to obtain 
redress. Hence, the celebrated provision of Magna Charta 
enacted that common pleas should no longer follow the king, 
and hence the Court of Common Pleas arose as a distinct 
tribunal fixed by law at Westminster. 

6. Court of King's Bench. 

It has been already stated that the county courts, which 
were of criminal as well as civil jm-isdiction, were retained 
after the Conquest, owing to the popularity of these tribu- 
nals, and to the tenacity with which people clung to their 
old institutions.^ These somewhat tumultuous courts (or 
assemblies, as they might more properly be called) were 
Under the presidency of the sheriff, who was appointed by 
the king. In order to insure a proper administration of the 
law, and to increase the royal influence, it became customary 
'to appoint the sheriffs from the justices attached to the 
king's household, or curia regisj * and sometimes men learned, 
in the law were selit down by special commission to hold 
these courts. It thus came to pass that itinerant justices 
went down from the curia regis to the counties, and there 
held the county courts. But one step more was necessary 
to constitute a distinct tribunal of general jurisdiction^ 

I- 

, } See article in Edinburgh Review, any great importance, and was finally, 

vol. 35, page 12. The limits of the by Stat. 5, Vio. o. 5, § 1, transferred 

juTiadiction of the different courts to the Court of Chancery. Mitford'a 

were not, in early times, defined wi^h Pleading, 6. 

very great precision.- Thus the • 1 Reeves's Hist. Eng. Law, Fin- 
Court of Exchequer exercised juris- lason's Notes, 80. 
diction as a court of equity, princi- ' 1 R,eeve3's Hist. Eng. Law, 80; 
pally, however, in cases of tithes, see also 1 Foss's Judges of England, 
But this jurisdiction never attained 171, 189; 377. 



CH. I.] HIGH COURT OF CHANCERY. 7 

namely, that before the judge went down to try the cause, 
the exact ma,tters in dispute should be settled and the ques- 
tions of law separated and determined. Hence Hhe king's 
justices who met for this purpose, and who were afterwards 
dispatched into the different counties, to preside over the 
trial of the issues thus made up, came to constitute a distinct 
tribunal, the King's Bench. To this tribunal, also, the name 
of curia regis has been applied.^ This result was probably 
brought about by Glanville, in the reign of Henry 11.^ In 
this way the curia regis, as it were, drew to itself and absorbed 
the jurisdiction of the county courts; ' and the vast increase 
of business, consequent upon this change, although not the 
origin of thp Court of King's Bench, was one of the reasons 
for its distinct and separate existence. 

To return to the ordinary council, or household of th6 king. 
The council accompanied the king in his movements; and 
writs for the redress of grievances were made returnable — 
i. e., the cause was to be heard — before the king wherever he 
should be in England. 

Over the ordinary council, a great officer of State,, the chief 
justiciary of all England, presided. His position in the realfn 
was next in rank ta that of the sovereign ; and in the absence 
of the latter from the kingdom, the chief justiciary acted as 
regent. This great oflSce was discontinued in the reign of 
Henry HI.* 

6. Position of the Chancellor. 

The chancellor was the secretary of the king,* and prob- 
ably acted as the secretary of the council. From his oflBce 
(the chancery) issued the writs which authorized suitors to 
bring their plaints before the" king's courts. For, in the or- 
dinary administration of justice, no action could be brought 
in the king's court except such as concerned the king^-the 
remedy between subject and subject being in the county 
and hundred courts. When, however, dissatisfaction came 

' See 1 Reeves's Hist. Eng. Law, ' 1 Foss's Judges, 171. 

Finlason's notes 80, 80. * Id. 11. 

« Id. » Id. 13. 



8 RISE AND PROGRESS OP THE [CH. I. 

to be felt at the decisions of the local courts, the parties 
began to apply to the king's court, and obtained from the 
chancellor's department (the offidna brevium), a writ appli- 
cable to their cases, and fpr which a fine was originally paid.* 
This payment having become an instrument of injustice, 
the Great Charter put a stop to it by providing that justice 
should no longer be denied or sold. 

As the council still retained its general supreme authority, 
applications for relief were frequently made to that body 
when redress could not be otherwise obtained. In consider- 
ing such applications, the advice of the chancellor would 
natiu-ally be followed, as he was the king's secretary, was 
the keeper of his conscience (to which the petitions were 
addressed), and attended his person. The chancellor, more- 
over, was generally an ecclesiastic; and to churchmen, in 
those days, the learning of the civil law, to which the common 
law is so much indebted," was principally confined. Besides, 
as from one branch of the chancellor's ' department issued 
the writs by which injuries were ordinarily redressed, he 
would naturally be the most proper person to determine 
whether the case presented was one which would fall within 
the forms already in use, or which would call for the exfcrcise 
of the extraordinary jurisdiction still held in reserve. In 
some cases, therefore, the answer to petitioners was, that they 
should have a writ out of chancery — in other words, they 
were sent to the King's Bench, or Common Pleas; in others, 
the Coiu't of Exchequer was pointed out as the tribtmal in 
which the cause would properly be cognizable; while in still 
a thu-d, the suitor would obtain relief (through the hands of 
the chancellor) directly from the council in the exercise of 
its extraordinary jurisdiction.' 

» Park's Hist. Chan. 25; Fleta, Lib. » See Bracton and his Relation to 

2, cap. 13; 4 Inst. 78; Story's Eq. the Roman Law, by Guterbock, 

Juriap., § 39. The Nonnan govern- Coxe's Translation, 

nient would be likely to encourage » 1 Spence Eq. 330. See also Rex 

such applications, in order to do i». Hare, 1 Str. Rep. 161; Story's Eq. 

away with the local courts, which Jurisp., $§ 43, 49. 
were of Saxon origin. 



Cp. I.] HIGH COURT OF CHANCERT. 9 

7. Origin of Chancellor's Extraordinary Jurisdiction. 

Of course, if the Courts of King's Bench, Common Pleas, 
and Exchequer had been able and willing to redress every 
imaginable wrong, the reserve jurisdiction of the coimcil 
never would have been called into play, and the Court of 
Chancery lever would have grown into being. But the 
jurisdiction of each of the common-law courts was circum- 
scribed. Certain precise' and rigid forms of action existed, 
which were supposed to effectually cany out the great maxim 
of justice, vhi jus ibi remedium, but which in point of fact 
were not sufficiently comprehensive to xio so. No comimon- 
law writ, for example, existed by which a defective instru- 
ment could be reformed, a fraudulent conyeyance set aside, 
a mistake or accident effectually relieved against, or a ben- 
eficial interest in/ property be enforced as against the holder' 
of a legal title. Hence many injuries must necessarily and 
actuaUy did exist, for which the common-law courts, fur- 
nished no appropriate redress; and therefore it was that, 
finding no relief in the King's Bench ot Common Pleas, 
the suitor was compelled to throw himself upon the grace 
asd compassion of the king and council. 

Two or three circumstances, moreover, concurred to render 
this extraordinary jurisdiction liable to increase: first, the 
tendency of the common-law rules to hardness and rigidity 
by reason of the deference paid to precedents; secondly, 
the refusal of the common law to adopt that part of the 
Roman law which may be called equitable, as distinguished 
from that which is merely stricti juris; ^ and, finally, the 
desire to increase the dignity and importance of the office 
of chancellor, which grew to great proportions after the 
abolition of the office of. Chief Justiciary, whereby an ambi- 
tious holder of the great seal would naturally be led to give 
redress by virtue of his extraordinary jurisdiction,' rather 
than by directing a writ to be issued to bring the cause be- 
fore the ordinary tribunals. 

Another advantage, also, which the relief administered. 
by the chancellor had over that obtained in the conamon-law 

> 1 Spence Eq. 206, 346, 347. 



10 RISE AND PROGRESS OF THE [CH. I. 

courts, and which therefore tended to enlarge the iexercise 
of the jurisdiction of the former, was this: A judgment at law 
was either simply for the plaintiff or simply for the defeiiidant. 
There could be no qualifications or modifications of the judg- 
ment. But such a judgment does not always touch the true 
justice of the cause or put the parties in the position which 
they ought to occupy, . While the plaintiff may be entitled, 
in a given case, to generial relief, there may be some duty 
connected with the 'subject of litigation which he owes to 
the defendant, the performance of which, equally with the 
fulfilment of his duty by the defendant, ought, in a perfect 
system of remedial law, to be exacted. This result was 
attained by the- decree of a court of equity, which could be 
so framed and moulded, or the execution of which could be 
so controlled and suspended, that the relative duties and 
rights of the parties could be secured and enforced. This 
capacity of moulding a decree to suit the exact exigencies of 
a particular case is indeed one of the most striking advantages 
which procedure in chancery enjoys over that at common 
law, and must have been one of the elements which con- 
tributed in no small degree to the ^origin and growth of 
equitable jurisprudence.^ 

It was,- most probably, to mitigate the rigors of the 
common-law courts, and at the same time: to check the 
growing jurisdiction of the chancellor, that the famous 
statute of Westminster II. (13 Ed. I., c. 24) was passed^ 
authorizing the issuing of writs in consimili casu. The in- 
abihty or the unwillingness of the chancery clerks to avail 
themselves of the provisions of the statute, to any consider- 
able extent, prevented the common-law courts from extend- 
ing their jurisdiction so as to cover the whole field of remedial 
justice, and still rendered it necessary for the suitor to apply 
elsewhere for extraordinary relief. ^ This extraordinary re- 
lief, whereby redress was given to those who were without 
remedy in the ordinary courts of the realm, was at first' 

» See Story's Eq. Jurisp., § 27; to what extent the jurisdiction of the 

Mitford's Pleading 3, 4. chancellor would have gone if action 

« It is difficult to imagine, however, on the case had never been invented. 



CH. I.] HIGH COURT OF CHANCERY. H 

administered by the council upon petition addressed to 
them. Applications of this nature were, in fact, invocations 
upon that resepe force of justice which still resided in the 
curia regis, ready, when occasion required, to be called into 
play. Its exercise was of favor, not of right; and hence those 
matters in which it was displayed were called emphatically 
"matters to be granted as of grace." 

When exactly it was that these applications came to be 
made to, and the redress consequent thereupon came to be 
afforded by, the chancellor alone, is an historical question 
involved in some doubt.^ Certain it is, that as early as the 
reign of Edward I. an ordinance was issued for the purpose of 
relieving the king from the business of attending to petitions 
addressed directly to him, whereby it was provided that 
"all petitions "touching the seal do come first before the 
chancellor;" and (providing, as it were, for an appeal to the 
king in great cases), "if the demands be so great and so much 
of grace that l^he chancellor and those others cannot do 
without the king, then they shall bring them before the king 
to know his will." ^ 

A more direct recognition of the chancellor as the proper 
person by whom the extraordinary jurisdiction in matters of 
grace was to be administered, is contained in a writ of Ed- 
ward III. addressed to the sheriffs of London, whereby 
suitors are specifically enjoined to prosecute those affairs 
which are of grace before the chancellor, or the keeper of the 
privy seal.^ In this reign the Court of Chancery ceased to 
follow the king.^ 

The natural consequences of these efforts on the part of 

• Haynes's Outlines of Equity, 40; long supposed to have been at com- 

Story's Equity Jurisp., § 44. men law; but the recent pubhcation 

^ Haynes's Eq. 44. In the same of the Year Books of the reign of 

reign the jurisdiction of the coxu't in Edw. III. (ed. of Luke Owen Pike) 

matters other than those of conscience shows this to be erroneous. The juris- - 

became of great importance. It in- diction by scire facias, etc., was not 

eluded pleas of scire facias for re- at common law. Year Book 12 & 13 

peal of letters patent; of petition of Edw. III., by Pike; Introduction, oi, 

right and monstrans de droit; traverse et seq., and cvi. et seq. 

of offices, and some others. 1 Spence • ' 1 Spence Eq. 340. ' 
Eq. 336. This jurisdiction has been 



12 BISE AND PROGRESS OF THE [CH. I. 

N 

the king to delegate this branch of judicial authority to the 
chancellor, would be that petitions for relief would come in 
time to be addressed directly to that officer. This result, 
in fact, shortly followed, and in the reign of Richard II. the 
practice of presenting a petition to the chancellor in the first 
instance was firmly established.^ 

8. Cases in which Chancellor's Extraordinary Jurisdiction 
was exercised. 

The general groimd for equitable relief was then, as it pro- 
• fesses to be now, either the failure of the common-law courts 
to recognize a right, or their inabiUty to enforce it. 

Among tlie most frequent instances in which this general 
doctrine of equitable reUef was applied were those in which 
petitions were addressed to the chancellor in cases of assault 
and trespass and a variety of outrages which' were cognizable 
at common law, but for which "the petitioner was unable to 
obtain redress owing to the position or powerfyl connections vf 
his adversary." * 

While, with the changed condition of society, the state of 
things which gave rise to and required this interference on 
the part of the chancellors has long ago passed away, and 
the jvirisdiction itself has therefore fallen to the gropnd, it 
is still useful to recur to it, in order to show the theory upon 
which courts of equity have always acted from the earliest 
times, namely, the desire to supply deficiencies, ho matter 
for what cause, in purely legal remedies. 

Another class of cases iux which the extraordinary inter- 
position of the chancellor was called for was that of trusts, 
wjiich was the term used when the legal title of property was 
held by one man, upon the confidence tha-t another should 
have the right to its beneficial enjoyment. The origin and- 

* A Bmall fragment of equity juris- ciety (founded in 1887 for the pur- 
diction bad, as has been already pose of publishing ancient judicial 
stated, drifted Into the Court of Ejr- MSS.); also, Goddard v. Ingepenne, 
chequer, where it remained until 1 Chan. Cal. viii.; Thomas i>. Wyae, 
Stat. 6 Vict. c. 5, J 1. See ante, page Id. xiv.; Belle v. Savage, Id. jot; 
6, note 1. Royall «i. Garter, Id. czzx. 

* See Proipeotus of the Selden So- 



CH. I.] 



HIGH COURT OF CHANCERT. 



13 



progress pf trusts will be more particularly noticed hereafter. 
They were emphatically "matters of conscience," and, 
therefore, fell strictly within the scope of the chancellor's 
extraordinary jurisdiction.* 

Besides these two classes of cases, many others existed in 
which the chancellor interfered. 

The following instances, taken from the Chancery Cal- 
endar, may be cited as illustrative of the nature and extent 
of the extraordinary jurisdictiofi of the High Court of Chan- 
cery during the period which extended from the termination 
of the reign of Edward III. to the reign of Henry VIII. 
Specific performance of a contract; ' specific delivery of a 
ship and cargo wrongfully detained; ' deUvery for cancella- 
tion of documents obtained by force; * rielief against a forged 
power of attorney; * injunction to restrain a nuisance, said 
nuisance being a stoppage of a water course; * for an injunc- 
tion to stay proceedings at law; ^ to recover deeds and other 



' The following case from the Year 
Book of 4 Henry VII., Hilary Term, 
pp. 4, 5, may be noted here: — 

A subpcena in Chancery was sued 
for this. There were two executors, 
and one without the consent of his 
companion released to a man who was 
indebted to their testator; and it was 
surmised that for',this cause the will 
of their testator could not be per- 
formed, and a subpoena was sued 
against the executor, who -released, 
and the man to whom the release was 
made, etc.^ 

Eineux said that this was not reme- 
diable; for each executor had entire 
power by himself (a par luy), and one 
can do all that his companion can do, 
and so the release made by him is 
good. 

Chamxllor: No man may leave the 
Court of Chancery without a remedy, 
■ and it is against reason that one ex- 
ecutor should have all the goods and 
make a release alone. 

Finewf: Sir, if na one may leave 



without a remedy, then no one need 
go to confession; but, sir, the law of 
the land isfor many things, and many 
things are to be sued here which are 
not remediable at common law, and a 
considerable number are in conscience 
between a man and his confessor, and 
so is this thing, etc. 

The Chancellor replied (inter alia): 
To make a remedy for such thing is 
well done according to conscience. 

' Kymburley v. Goldsmith, Ch. Cal. 

XX. 

* Bqnodjrn v. Arundell, Ch. Cal. 
xxxviii. This appears to have been 
by virtue of the former jurisdiction of 
the chancellor in aidmiralty, long since 
obsolete. See 1 Spence Eq. 703. 

* Pickering v. Tonge, Chan. Cal. 
xUv.; Lord Berkley v. The Countess 
of Shrewsbury, Id. Ixxvi.; Brown v. 
Lord Say's Widow, Id. xlvii. 

' Bief V. Dyer, Id. xi. 

* The Burgesses of East Retford v, 
Thomas de Hercy^ Id. ix. and x. 

' A^tel V. Cauaton, Id. cviii.; Edy- 



14 RISE AND PROGRESS OP THE ' [CH. I. 

evidence unjustly retained by the defendant in his posses- 
sion ; ' for pennission to go on with a suit at law from which 
the plaintiff had been restrained by an injunction; " because 
the plaintiff is disturbed in his manor by the defendant 
falsely claiming an annuity charged on the land; ^ to restrain 
a defendant from the use of witchcraft; * to assign dower to a 
poor widow; ^ because the defendant had through envy 
thrown down the, plaintiff's house; * for reUef against main- 
tenance;^ for quiet possession;* for discovery;' to set aside 
a conveyance obtained from the complainant when intox- 
icated; ^'' for tithes; " to restrain harassing litigation; ^^ to set 
aside a release obtained by a trick, and to enjoin the defend- 
ant from using it in an action at law.*^ 

In Geffry Downham v. Heylyn ap Blethyn ^^ the defendant 
is alleged to have wrongfully obtained letters of presentation 
to a benefice. For this there was a legal remedy by scire 
facias; but the complainant seems to have thought himself 
justified in seeking equitable relief on the simple ground of 
failure or delay on the part of the common-law courts. 
"He hath sued," says the petition, "for the same cause from 
term to term at Nottingham, York, Winchester, and Londoii, 
without success." - 

Broddesworth v. Coke,^' which occurred in the reign of Ed- 
ward IV., is a case which strikingly illustrates the progress 
which equitable jurisdiction was making. It was a bill 
setting forth an agreement by which the complainant was to 
convey certain lands, goods, and tallies " to the defendant 
for the purpose of making a settleinent with the complain- 
ant's creditors, and to secure advances to be made by the 
defendant; and that afterwards, upon the soUcitation of the 

all V. Hunston, Id. cxiii.; Peverell v. ' Bell v. Rawe, Id. xxxvi. 

Huse, cxxii. » Cullyer v. Knyvett, Id. cxxxvii. 

' Reed v. The Prior of Launceston, » Oxford v. Tyrell, Id. cxx. 

Id. cxiv. "Stonehousew.Stanshawe,Id.xxix, 

' Royall V. Garter, Id. cxxx. " Arkenden v. Starkey, Id. xxxv. 

' Hauley d. Tresilian, Chan. C3al. " Freeman v. Poutrell, Id. xlii. 

iii., iv. " Cobbethorn v. William, Id. li. 

* Hoigges V. Harry, Id. xxiv. »* 1 Chan. Cal. ii. 

' Danyell v. Belyngburgh, Id. xxx. " I^. Ixvii. 

« Saxby v. Laurence, Id. xxxiii. w Acquittances. ^ 



CH. i.] HIGH COURT OF CHANCERY. 15 

defendant, an absolute conveyance was executed, although 
it was intended that the transaction should be a mortgage. . 
The prayer of the bill was for an account and reconveyance. 
The bill was dismissed because, as to the lands, the evidence 
of the conditional character of the conveyance was insuffi- 
cient, and as to the goods and tallies the complainant had a 
remedy at law. 

In the above case it will be observed that many well- 
known equitable doctrines are recognized. In the finst place 
an absolute conveyance is alleged to be a mortgage, and the 
fraud of the defendant in taking advantage of its absolute 
form, contrary to the true intention of the parties and to his 
promise, is set forth as a ground for equitable relief. The 
defendant, moreover, is, in substance alleged to be a trustee 
for the benefit of the complainant's creditors, and as such 
liable to answer before a court of equity. The relief sought 
is in accordance with the redress which a chancellor of the 
present day would give in such a case if it were properly 
proved, viz., an account showing how the trust assets had 
been administered, and a reconveyance of so much of the 
, real estate as had not been employed for the purposes of the 
trust. The decree of the court is also in accordance with 
modern principles; for when actual /raud is alleged it cannot 
be presumedrbut must be proved; whereas in the present 
instance the complainant seems to hava been unable to 
make out his case. And as to the goods and tallies, the bill 
appears to have been rightly dismissed, because for those 
the complainant had a complete common-law remedy. 

9. General Conclusions; Writ of Subpoena; Pleading; 
Evidence. 

From the above brief sketch of the rise of the jurisdiction 
of the English Court of Chancery three things are plain: 

First. That, in the earUest times of the English Constitu- 
tion, there was felt a want of judicial relief outside and be- 
yond that which was afforded by the common-law courts of 
the King's Bench, Common Pleas and Exchequer. 

Second. That in consequence of this want, and for the pur- 



16 RISE AND FBOGBESS OF THE [CH. I. 

pose of supplying it, appeals were made to the king, as the 
• head and fountain of all justice; sometimes in Parliament, 
sometimes in council, and sometimes in person; and that 
these applications, from the circumstance of having been 
referred from time to time to the chancellor, came at last to 
be presented to that official in the first instance; and 

Third. That relief was afforded upon these petitions only 
in those cases wherein the common-law courts either could 
give no ¥edress at all, or could give no adequate' redress; and 
that while in some of these cases .the necessity for the inter- 
position of a chancellor has passed away, in others the prin- 
ciples then enforced have fiu^ished the foundation upon 
which the modern jurisdiction of courts of equity has been 
built. 

The process in equity was a subpoena, issued by the chan- 
cellor, in the name of the king, whereby the party was sum- 
moned to appear and answer the complaint of the plaintiff, 
and abide by the order \of the court. It is commonly sup- 
posed to have been invented by John ae Waltham, keeper 
of the seal under Richard II., and it is so stated in the com- 
plaint made by the commons to Henry V. ; but this is doubt- 
less an error, as an instance of the writ is found in 37 Edward 
III. ; and de Waltham was not Master of Rolls imtil the fifth 
year of Richard 11.^ 

The statement of the plaintiff's cause of action in equity is 
called the bill. To this bill the defendant (unless he could 
protect himself by a demurrer or a plea) was obliged to put 
in an answer under oath. The complainant in equity was 
therefore enabled to "search the conscience" of the defend- 
ant. But the defendant, on the other hand, enjoyed this 
advantage, that his answer, where no replication was filed ' 
by the complainant, was taken to be absolutely true in all 

> See 1 Spence Eq. 338, note e. as early as the reign of Edward III., 

•'The subpcEna was the former proc- when the jurisdiction of the court was 

ess to bring in a party to answer a beginning to show traces of a partial 

charge before the king in council (see independence of that of the council. 

Hale Jurisd., H. L., pp. 7, 44), and 1 Ro. Abr. 372." Winter v. Ludlow, 

was for some remedial purposes a Cadwalader'a Cases, 36. - 
usual process of the court of chancery 



CH. I.] HIGH COUKT OF CHANCERY. 17 

its parts, whether the averments which it contained were 
simply in denial or were by way of confession and avoidance. 
And even when a replication was filed, the answer, when 
responsive to the bill, was also conclusive unless contradicted 
by two witnesses, or, by one witness and corroborating cir- 
cumstances.1 This fact is important to remember in many 
' cases, in considering the relief which a court of chancery 
affords. Relief may with propriety be granted, if based 
upon an admission of fact by the defendant himself, when, 
without such a foundation, it ought with equal propriety 
to be refused. Thus it will , be seen hereafter that equity 
vwill reform an instrument or rescind a contract executed or 
entered into under a mistake of fact, or because it does not 
correctly express the intention of the parties. But it does 
this only after the mistake has been admitted by the defend- 
ant, or so conclusively proved against his answer , denying 
it, that there can be no dbubt whatever of its existence. 
While the relief afforded in equity was therefore extraor- 
dinary, equally extraordinary precautions were taken to 
prevent that relief from being improperly granted. 

If the plaintiff was not satisfied with the admissions in -the 
answer, and could not upon those admissions obtain the re- 
lief which he sought, his proper course was to traverse the 
defendant's averments, and this was done by filing a replica- 
tion. The issue or issues between the parties were in this 
way arrived at, and the next step was the production of the 
evidence. , 

The manner of taking evidence in equity is different from 
that which is pursued at law, although the rules of evidence 
are the same. At law the testimony is taken vivd voce, and 
publicly at the trial of the cause; in equity, according to the 
ancient practice, the evidence was elicited by interrogatories 
and cross-interrogatories, and was taken privately before 
an officer of the court called an examiner.^ The practice 
was for the party (plaintiff or defendant) to file written in- 
terrogatories, whereupon the opposite party was at liberty to 
file cross-interrogatories for the purpose of cross-examination. 

•Shingle v. Smyth, 248 Pa. 359 " gee Adams's Eq.* 365 eUeg. 
(Pa. Act, May 28, 1913, P. L. 358) . 

2 



18 KISE AND PROGRESS OF THE [CH. I. 

Upon these interrogatories and cross-interrogatories the 
witnesses were examined privately by an examiner — no one 
but the witness and the examiner being permitted to Be 
present^ — and the answers reduced to writing. After the 
depositions had thus been taken, leave to inspect thein, 
after a time fixed by rules of court, was given to the parties, 
and this was called passing publication. After publication 
was passed, no further witnesses could be examined without 
special leave of the court. 

This method of taking testimony in chancery has been 
changed in modern times; and in England and in the United 
States a viva voce examination "before the examiner, or, before 
the court itself, is now substituted for the examination 
through interrogatories. The testimony, however, is reduced 
to writing, and forms part of the record in the cause. The 
difference between the methods of taking testimony in 
chancery and at law is the result of the difference in the ends 
sought to be attained. At law, evidence is the means 
whereby a jury determines the issues raised by the pleadings; 
in chancery it is the machinery by which the chancellor 
informs himself of the facts upon which to base his decree. 
The complainant in his bill is bound to set forth the facts 
which are supposed to entitle him to relief; and the'defend- 
ant's answer must be fully responsive to these allegations. 
If the answer admits the statements in the bill, the facts nec- 
essary to found a decree then stand admitted on the plead- 
ings. If the answer denies the averments of fact in the bill, 
it is, as already stated, conclusive in favor of the defendant 
unless contradicted by two witnesses, or by one witness and 
corroborating circumstances. Where^ however, the tes- 
timony is conflicting, the chancellor is not obhged to decide 
the issue of fact thus raised, himself, but may direct an 
issue to be framed and sent to a jury. But this course is 
only adopted to inform (as the phrase is) the conscience of 
the chancellor, and if he is not satisfied with the finding of 
the jury he may disregard it.^ And he is bound so to dis- 

> Heniy v. Mayer, 6 Ariz. 114; Buckers Irrigation Co. «. Farmere' 

Ditch Co., 31 Colo. 62. 



CH. I,] HIGH COURT OF CHANCERY. 19 

regard it if the evidence is insufficient to warrant a jury in 
finding the fact.' It results from this that in* Pennsylvania 
and other States, where common-law forms are used for the 
purpose of administering equitable relief, it is the duty of a 
judge, where, in his opinion, the facts proved do not make 
out a case in which a chancellor would make a decree, to 
give binding instructions to that effect to the jury.^ It must 

. also be understood that the court is not bound to send an 
issue to a jury. It is solely for the benefit of the chancellor, 

" and if he can, to his own satisfaction, pass upon the evidence 
without the assistance of a jury trial he may do so ; ' for the 
right of trial by jury, considered as an absolute right, does 
not extend to cases of equity jurisdiction.* 

10. Progress of Chancellor's Jurisdiction. 

To return from this digression.. The jurisdiction above de- 
scribed was jaot exercised without opposition. In the suc- 
cessive reigns of Richard II., Henry IV., Henry V., and 
Henry VI., petitions were, from time to time, presented by 
the Commons setting forth encroachments upon the common 
law, complaining that men were brought before the council 
on matters which were remedial at law, and (in two instances) 
inveighing against the use of the subpoena. The jurisdiction 
of the chancellor and the council was, however, upheld by 
the sovereign; and the obnoxious writ was npt abolished. 

In the reign of Henry VIII. a statute was passed which 
threatened at first to remove a large portion of the jurisdic- 
tion of the chancellor by destroying a species of property 
which had hitherto been s^olely cognizable in his court, 
namely the Use. 

By the celebrated Statute of Uses (27 Henry VIII., c. 10) 
this estate in the land (the use),'Which had hitherto been 
recognized solely in a court of equity, was clothed with the 
legal title, and thereby' rendered a proper subject for the 

'Baker v.- Williamson, 4 Pa. Co., 215 Pa. 648. See Kohn ». Mc- 

456. Nulta, 147 U. S. 238. 

« PhiUips V. Meily, 106 Pa. 536; ' Smith v. Carll, 5 Johns. Ch. 118. 

Fidelity Ins. -Co; v. Moore, 194 * Barton v. Barbour, 104 U. S. 133; 

Pa. 617; Dorris v, Morrisdale Coal Canavan v. Paye, 34 Pa. Sup. 91. 



20 RISE AND PKOGRESS OF THE [CH. I. 

recognition of a common-law court. The nature of the use 
and the effect of the' statute will be explained hereafter. It 
will be sufficient to say, at present, that the threatened blow 
at the jurisdiction of chancery was averted by an ingenious 
construction of the statute, whereby these equitable estates 
were rescued from destruction, and their control still retained 
in the court where they had originated. 

In the reign of James I., another attempt was made to 
interfere with the jurisdiction of the chancellor. An action 
was tried before Coke in which the plaintiff lost the verdict 
in consequence of one of his witnesses being artfully kept 
away. He then had recourse to chancery to compel the 
defendant to answer on his oath, which the latter refused to 
do, and was committed for contempt. Coke then had in- 
dictments preferred against the parties to the bill, their 
counsel and solicitors, for suing in another coiul; after judg- 
ment obtained at law, which was alleged to be-contrary to 
the statute oLprcemuniik. 

The matter was referred to the king, whose decision was in 
favor of the lord chancellor.^ 

From that time to the present the jurisdiction of the Court 
of Chancery has been free from interference, and iias ex- 
panded into a wise and comprehensive system of justice. 
This system has been perfected by the hands of many 
illustrious men who have sat upon the woolsack or at the 
Rolls — ^among whom are to be mentioned Nottingham,* 
Hardwicke, Eldon and Grant, St. Leonards, Westbury, 
Selborne and Jessel^ 

Courts of common law, in modern times, have afforded 
relief in many cases which formerly fell under the cognizance 
of chancery alone; but the latter tribunal has not, on that 
account, abandoned the jurisdiction which it had acquired, 
and the suitor has now, not unfrequently, two tribunals 
open from which he may obtain redress. 

'■ Earl of Oxford's Case, 1 Ch. Rep. may say, in this court," by Sir R. 

1; 2 Lead. Caa. Eq. *601 (1291, 4th Pepper Arden, M. R., in Brydget ».. 

Am. ed.). Brydges, 3 Ves. 137. 

'"The father of equity ahuost, I 



CH. I.] HIGH COUKT OP CHANCERY. 21 

The choice between the two tribunals in England has been 
of late years greatly affected in favor of the Court of Chan- 
cery, by reason of the vast impsrovements which have beeil 
introduced in the -constitution of the equity courts and the 
practice therein. The jurisdiction formerly administered 
by the chancellor alone came, by various statutes, to be 
vested in eight judges, viz., the Lord High Chancellor, two 
Lords Justices of Appeal, the Master of the Rolls, three 
Vice-Chancellors, and the Chief Judge in Bankruptcy; and 
many improvements were introduced tending to the prompt 
and economical administration of justice. 

11. Supreme Court of Judicature Act. 

The system, however, of two distinct sets of courts admin- 
istering different and, sometimes, conflicting rules at last 
ceased to find favor in England. On the fifth of August, 
1873, an Act of Parliament was passed under the title of the 
"Supreme Court of Judicature Act," whereby the constitu- 
tion of the EngUsh courts was radically changed. By this 
Act (which, it was declared, should come into operation on 
the second day of November, 1874) it was provided that the 
Court of Chancery, the Com-t of Queen's Bench, the Court 
of Common Pleas, the Court of Exchequer, the High Court of 
Admiralty, the Court of Probate, the Coiu:t for Divorce and 
Matrimonial Causes, and the London Court of Bankruptcy 
should be united and consolidated, and should constitute 
one Supreme Court of Judicature, to consist of two divisions 
under the name of "Her Majesty's High Court of Justice," 
and "Her Majesty's Court of Appeal." It was further pro- 
vided that the jiidges of the High Court of Justice should 
not exceed twenty-one in, number; and that the Court of 
Appeal was to consist of five ex oj^cio judges, and so many 
ordinary judges (hot exceeding nine at any one time) as 
might from tune to time be appointed. The ex officio judges 
were declared to be the Lord Chancellor, the Lord Chief 
Justice of England, the Master of the Rolls, the Lord Chief 
Justice of the Common Pleas, and the Lord Chief Baron of 



22 KISE AND PROGRESS OF THE [CH. I. 

the Exchequer. ^ The Act further provided that, if the plain- 
tiff claims ^ny equitable estate, or right, or relief upon any 
equitable ground, or equitable relief upon a legal right, the 
said courts and every judge thereof should give the same 
relief as ought to have been given by the Court of Chancery 
before the passing of the Act; and that, if a defendant claims 
any equitable estate or right, or relief, upon any equitable 
ground, or alleges any ground of equitable defence, the said 
courts and every judge thereof should give the same effect 
to every estate, right, or ground of relief so claimed, and to 
every equitable defence so alleged, as the Court of Chan- 
cery ought to have given in proceedings in that court before 
the passing of the Act. Other provisions also exist, whereby 
equitable titles and rights are directed to be recognized, and 
equitable remedies substantially applied.^ 

By Statute of 38 and 39 Vitt. c. 77 (1875), the constitution 
of the Court of Appeal was changed, and that tribunal was 
made to consist of the five ex officio judges already named 
and as many ordinary judges, not exceeding three, as should 
be, from time to time, appointed. By the Act of 1876 (39 
and 40 Vict. c. 59) three additional judges of appeal may be 
appointed, and an appeal lies from the Court of Appeal to 
the House of Lords. The positions of Lord Chief Justice 
of the Common Pleas and Lord Chief Baron of the Exchequer 
are now abolished. 

It will be observed that, by the provisions of these Acts, 
the principles of justice, as administered in the Court of 
Chancery, were made to pervade the Whole mass of EngUsh 
jurisprudence; and that, in fact, by the rules growing out of 
those principles, all questions of justice in England are 
hereafter to be determined. 

It is plain, from the above sketch of the rise of the Court 
of Chancery, that the term "equity," as descriptive of an 

• By statute of 44 and 45 Vict. c. 68 Statute of 54 and 65 Vict. c. 53 

(1881), the President for the time be- (1891), shall the Ex-Lord Chan- 

ing of the Probate, Divorce, and Ad- cellor. 

mir^lty Divisions of the High Court * See Wilson's Judicature Acta, 

of Justice shall be an ex officio judge pp. 1 to 169; and 18 Am. Law ReT. 

of the Court of Appeal; and so also by 675. 



CHj f] HIGH COURT 6F CHANCERY. ' 23 

important body of English law, has, as stated above, an 
essentially technical signification, and that its precise and 
definite meaning when so used is clearly distinguishable 
from that which it bears in. its ordinary acceptation. Thus, , 
"equity" may be in one sense synonymous with natural 
right and justice; but neither Courts of Chancery nor courts 
of law profess to afford relief in all cases in which redress - 
would be prescribed by rules of charity, generosity or benev- 
olence, or by the dictates of a nice sense of honor, and yet 
the rules of benevolence and the principles of honor are in- 
cluded within the scope of the terms "right" and "justice," 
and may therefore fall within one meaning of the term 
"eguity." On the other hand; courts of common law 
recognize "equity" in a certain sense. Thus, when the 
"equity" of a statute_js spoken of, or a certain case is said 
to be within that "equity," or the like, the meaning intended 
to be conveyed is simply that a sound and fair interpretation 
of the law must be given — an interpretation based not upon 
its letter alone, but upon its spirit and true sense. This 
method of interpreting statutes is one of the fundamental 
rules for their construction, and obtains in all .courts — ^in 
those of common law just as much as in those of equity. 

The meaning of the word "equity" then, as used in its 
technical sense in English jurisprudence, comes ba6k to this, 
that it is simply a, term descriptive of a certain field of juris- 
diction exercised, in the English system, by certain courts, 
and of which the extent and boundaries are not marked by 
lines founded upon principle so much as by the features of 
the original constitution of the English scheme of remedial 
law and the accidents of its developmenti 

12. Principles of Equity adopted in United States. 

It has been already stated that the principles of justice, as 
administered by the High Court of Chancery in England in 
the exercise of its. extraordinary jurisdiction, have been 
adopted in nearly^all, it would not be too much to say in all, 
of the United States. While this is true, it must be remem- 
bered that the practical application of these principles 



24 BISE AND PBOGRESS OF THE [CH. I. 

through the machinery jof the courts has varied very much 
throughout the Union, and has received many modifications 
at different periods. 

13. Jurisdiction of Federal Courts. 

The federal courts have equity powers within the scope of 
the jurisdiction conferred upon them by the Constitution.* 

By the Constitution of the United States * it is provided 
that th^ judicial power of the federal government shall 
extend to all cases at law or in equity arising under the Con- 
stitution and laws of the United States, and treaties made 
or which shall be made imder their authority.' This juris- 
diction, »as explained in the judiciary act, is not to be ex- 
ercised in either of the courts of the United States in any 
ease where a plain, adequate, and complete remedy may be 
had at law,* but this enactment is declaratory merely of the 
existing law.' It has also been said that the practice of the 
English High Court of Chancery forms the basis of the equity 
practice of the courts of the United States.® 

The Act of March 3rd, 1911 (Judicial Code) as amended 
by the Act of March 3rd, 1915, C. 90— provides:— "in all 
actions at law equitable defenses may be interposed by an- 
swer, plea or replication without the necessity of filing a 
bill on the equity side of the court." It has been held that 
the act did not in any way, except as to procedure change 
the essential distinction between law and equity — -cases in 

' Neves v. Scott, 13 Howard, 272; Louisiana Bank Co., 215 U. S. 43; 

Boyle V. Zacharie, 6 Peters, 658; Rob- McClellan v. Garland, 217 U. S. 281. 

inson v. Campbell, 3 Wheat. 223; «Act of 1789, §16; 1 Stat, at 

Noonan v. Lee, 2 Black, 509; Briggs Large, 82; Revised Statutes, § 723, 

V. United Shoe Co., 239 U. S. 48. p. 137; Richardson v. Pa. Coal Co., 

' Art. ni., sec. 2. 203 Fed. 746. 

' The equity jurisdiction of the i ' Boyce v. Grundy, 3 Pet. 210; 

federal courts is derived from the Oelrichs v. Spain, 15 Wall. 228; 

federal constitution and statutes Grand Chute v. Winegar, 15 Wall, 

and is like unto that of the High 376; Hunt v. Danforth, 2 Curt. 592. 

Court of Chancery in England at the See Thompson v. R. R. Co., 6 Wall, 

time of tfie adoption of the Judiciary 137; Buzard v. Houston, 119 U. S. 

Act of 1789; it is not subject to limita- 352; Smith v. Am. Nat. Bank, 89 Fed. 

tions or restraints by state legislation 832. 

givingjurisdiction to state courts over "Smith v. Burnham, 2 Sum. 612, 

similar matters. Waterman v. Canal- 625. 



CH. i.] HIGH COURT OF CHANCERY. 25 

equity being those w^ich in the jurisprudence of England 
were so called as contradistinguished from cases at common 
law at the time of the framing of the Constitution,^ and that 
it was not the intention of Congress to abolish all distinc- 
tions between actions at common law and suits in equity 
and to establish one form of civil action for all cases.^ 
- Not only are both the principles and practice of the High 
Court of Chancery recognized in the administration of equity 
in the federal courts, but the administration of chancery doc- 
trines under chancery forms is uniform throughout the 
Union. "At the time when the Constitution was formed, 
this distinction between law and equity as known in the 
country from which our ancestors came, was recognized 
by the Constitution; and the courts of the United States 
have uniformly held that the rules of. decision in equity cases 
were the same in all- the states, and they are the equity law 
which we derived from England." ^ It is, moreover, settled 
law that the courts of the United States do not lose any of 
their equitable jurisdiction in those states where np such 
courts exist, but, on the contrary, are boimd to administer 
equitable remedies in cases to which they are applicable, 
and ^hich are not adapted to a common-law action. 

14. Changes of Procedure in some States. 

After the separation of the American colonies from the 
British Crown, the constitutions of many of the stalfes pro- 
vided for the establishment of courts of chancery, after the 
model of the High Court of Chancery in England.* Such 

1 Union Pacific Ry: Co. v. Syas, Soc. Mag. for July, 1881, where a 

246 Fed. 565. ^ case in Chester county is cited in 

* Keatley v., United States Trust which a court sitting as a opurt of 
Co., 249 Fed. 296; Whitcomb v. equity reversed its own judgment 
Schultz, 223 Fed. 275; Forty Fort given as a court of law. See Rawle's 
Coal Co. V. Kirkendall, 233 Fed. 706. Essay on Equity in Pennsylvania. 

'Curtis on the Jurisdiction of the ctourtg of chancery had also existed 

United States Courts, 213; Neves v. ^^^^ ^^ ^^^ Revolution in most of 

Scott, 13 How. 268. - ^jjg goionjgg ggg Lauggat's note to 

* A court of chancery had existed ,^_, -,i < -rii ■,. to i- i • 
for a short time in Pennsylvania be- 1 Fonblanque s Equity, 13, article in 
tween the years 1720 and 1739. See 18 Am. Law Rev. 226, and Story's 
article by Law. Lewis, Jr., in Hist. Equity Jurisprudence, § 56. 



26 RISE AND PROGRESS OP THE [CH. I. 

was the case in New York, New Jersey, Maryland, Delaware, 
South CaroUha, and also Michigan. 

In other states, as in Pennsylvania, there were no separate 
courts of chancery, and the equity powers conferred upon the 
common-law courts were exceedingly Umited. Changes were, 
however, made from time to time in most of the states. In 
1840 the state convention which revised the Constitution of 
New York aboUshed the courts of chancery, and conferred 
upon the Supreme Court a general jurisdiction in law and 
equity; while, on the other hand, in Pennsylvania enlarged 
equity powers were conferred upon the courts in obedience 
to the suggestions contained in the report of the committee 
to revise the civil code, made in 1835. 

The example of New York, in aboUshing the distinction 
between legal and equitable forms of action, and substituting 
a general form of civil action in their place, has been followed 
by very many of the western states of the Union, and even 
the state of South CaroUna, so justly celebrated for the learn- 
ing and ability of its chancellors, has given in its adherence to 
the new system, and has adopted a code whereby separate 
courts of equity are abolished, and all civil injuries are re- 
dressed by one form of action.' 

But even in those states where this sweeping change has 
been effected it has still been found necessary to make pro- 
visions for certain equitable remedies, the absence of which 
would inevitably result in a failure of justice in many cases. 
Thus, injunctions and writs of ne exeat are issued, specific 
performance enforced, and receivers appointed upon applica- 
tions not made according to the course and practice of 
chancery, but under common-law or statutory forms; ^ and 

1 Code of Civil Procedure, § 114. Gen. Statutes, §§ 7888-7895; Indiana, 
" This is the case in California. Burns' Annotated Statutes, Arts. 42, 
Kerr's Code of Civil Procedure, 47. Even in Pennsylvania, where 
§§ 625 and 564; New York Code Civ. the doctrine of equitable- relief under 
Proc, § 3339; Ohio, Page and Adams common-law forms is most firmly 
Annotated General Code, § 11875; established, complete redress is some- 
Missouri, Revised Statutes, 1909, times only attainable by bill in 
§ 2512; Kansas, General Statutes, chancery. See Treftz v. King, 74 Pa. 
§§5843, 5860; Wisconsin Statutes, 350. The equitable jurisdiction 
Chapter 126, § 2773; Minnesota, is not general; it is limited to certain 



CH. I.] HIGH COURT OF CHANCERY. 27 

relief which falls under the quia tirnet jurisdiction of equity is 
afforded through the medium of a petition or complaint. 

15. Classification of states. 

In considering this subject, therefore, the states of the 
Union may be conveniently divided into three groups or 
classes. 

The first embraces those states wherein distinct courts of 
chancery exist; and includes New Jersey, Delaware, Ten- 
nessee, Mississippi, Alabama, Vermont and Arkansas. 

The second class is composed of those states .wherein chan- 
cery powers are exercised by judges of common-law courts, 
but according to the course and practice of chancery. These 
states are Maine, New Hampshire, Massachu^tts,. Rhode 
Island, Pennsylvania, Maryland, Virginia, West Virginia, 
lUinois, Florida, Michigan and Oregon. 

The third class of states includes, it is believed, all those 
which have not been mentioned as falling within the other 
two classes. In these states the distinction between actions 
at law and suits in equity has been abolished; but, as has been 
already stated, certain equitable remedies are still admin- 
istered under the statutory form of the civil action. 

Whatever inodifications have been introduced by statute 
into the /orwis. of reUef, the system of justice which is admin- 
istered in cpurts of equity must, of necessity, enter into the 
laws of every civilized state whose- institutions are derived, 
directly or indirectly, from England; and no state in the 
Union, however widely it may depart from the practice of 
the English High Court of Chancery, can discard the prin- 
ciples upon which its extraordinary jurisdiction is founded.^ 

enumerated subjects. Pitoairn v. Pit- ' See German-American Trust Co. 

cairn, 201 Pa. 368. And no advisory v. Sh'allcross, 147 Pa. 485, for an ex- 

or declaratory jurisdiction can he , ample of a case in which an attempt 

exercised by its courts. Morton's to get an eqiiitable relief in a com- 

Estate, 201 Pa. 269; Hogsett v. mon-law suit, conducted on equitable 

Thompson, 258 Pa. 91; Wilson v. principles, failed, and a resort to a 

:6lains, 262 Pa. 371. bill in chancery was necessary. 



CHAPTER II 



GENERAL OUTLINE OP EQUITABLE JURISDICTION 



16. 'Three great diviaions of Equity. 

17. Equitable Titles; Example. 

18. Equitable Sights; Example. 

19. Equitable Remedies; Example. 

20. Subjects of Equitable Jurisdic- 

tion; Trusts. 

21. Mortgages. 

22. Assigmnents. 

23. Accident and Mistake. 

24. Fraud. 

25. Notice; Esloppel; Election. 

26. Conversion. 

27. Adjustment; Set-off; Contribu- 

tion; Subrogation; Exonersr 
tion; Marshalling. 

28. Equitable liens. 



29. Specific performance. 

30. Injunctions. 

31.^ Re-execution; Reformation; Re- 
s''is8ion; Cancellation. 

32. Account; Dower; Partition; Con- 

fusion of Boundaries; Rent. 

33. Partnership Bills; Creditors' Bills; 

Administration Suits. 

34. Infanla, Idiots, and Lunatics. 

35. Discovery; Commissions to ex- 

amine witnesses abroad; Per- 
petuation of Testimony; Exam- 
inations de bene esse. 

36. Bills quia timel; Receivers; Writs 

of ne exeat; Writs of supply- 
cavit. 



16. Three great divisions of Equity. 

It is trusted that the sketch already given of the rise of 
the High Court of Chancery in England, and of the reasons 
for its assuming the exercise of its extraordinary jurisdiction, 
has made it apparent that the subjects or heads of chancery 
jurisdiction are susceptible of division into three general 
classes: the first embracing those cases in which cornmon-law 
courts do not recognize a title; the second, those in which the 
common-law courts do not recognize a right; and the third, 
those cases in which the common-law courts cannot enforce 
a right, or canfiot enforce it so as to do complete and exact 
justice.^ 

It will be convenient to give an illustration of each of these 
general subdivisions pf equityi 

17. Equitable Titles; Example. 

Equity recogpizes titles which were entirely ignored at 
comm'on law. 

> See Spence Eq., Part II., Book III,, Chap. 1. 
28 



CH. II.] GENERAL OUTLINE OF EQUITABLE JURISDICTION. 29 

Thus, for example, it is well known that & chose in action 
could not be assigned at common law. The assignee had no* 
standing whatever in a common-law court; the assignment 
was null; he simply took no title whatever. In equity, how- 
ever, whenever the assignment was founded upon a valuable 
consideration, and when it would therefore be unfair to 
allow a person to pay value without getting a substantial 
equivalent, an entirely new title was created, distinct from 
and independent of the legal title, which still remained in 
existence, but was held by the assignor solely for the benefit 
oithe assignee. The method of asserting this equitable title 
was by allowing the assignee to use the name of the assignor 
in an action at law to recover the chose, and by restraining 
the latter from any interference in this suit. If the assignor 
refused to allow his name to be used, or any other reason 
existed which called for the direct interposition of chancery, 
the assignee was entitled to 'file a bill in equity, and his title 
to the chose was immediately recognized and enforced.^ 

Here, then, is a case in which equity creates and enforces 
a title not known at -law. 

18. Equitable Rights; Example. 

Again: the enjoyment, devolution, and transmission of 
legal titles are sometimes controlled by equitable doctrines, 
so that the rights of parties thereto may, be very different 
in courts of equity from those to which a court of law would 
give effect. For instance, a guardian purchases property 
of his ward the day after the latter attains his majority. 
Here is a transaction by which the legal title to the property 
passes, and after which the rights of the parties, at law, are 
fixed. But equity views such a bargain with a jealous eye; 
and, in fact, has laid down the imperative rule that it caimot 
stand if the ward within a reasonable time chooses to dis- 
ia^ffitm it. In equity, therefore, the ward may obtain a 
restitution of the prop^ty (upon the return of the considera- 
tion), not, indeed, because in chancery any new title is 
created, but because by the application of an equitable 

> Trexler v. Kuntz, 36 Pa. Sup. 352. 



30 GENERAL OUTLINE OF EQUITABLE JURISDICTION. [CH. II. 

doctrine the legal title is taken away from the person who at 
'law would be entitled to hold it, and restored "to him who in 
good conscience should be the rightful owner. 

19. Equitable Remedies; Example. 

Of the third general class of cases in which equity affords 
relief — those, namely, in which a court of law recognizes a 
right but cannot enforce it — in other word^, those cases 
which fall under the head of equitable remedies — the doc- 
trine of specific performance of contracts may be taken as an 
illustration. At law, if A. sells B. a piece of real estate, the 
legal title remains in the former until a deed is executed and 
delivered ; and if he refuses to complete the sale, no power at 
common law can compel him to convey. B.'s right at com- 
mon law (supposing the contract to be executed in such a 
way as to be binding) is simply a right of action on the con- 
tract by which damages may be recovered. Now, even if the 
case should happen to be one in which B. may recover dam- 
ages in a conmion-law action for the loss of his bargain,^ it 
is obvious that his legal remedy is nevertheless wholly in- 
adequate, and affords no substantial redress. He has a right 
to^he property; he has a right which the law recognizes, 
because, if the property is destroyed, the loss falls on him; 
but the common law is powerless to give Kim the thing 
itself for which he has bargained; it can only give him 
damages. 

But in equity he has complete relief. Upon a biU being 
filed, and a proper case made out, the complainant is en- 
titled to a decree that the defendant do convey to him the 
property in question on or before a certain day; and if the 
defendant disobeys the decree, his compHance therewith is 
enforced by an attachment — ^in other words, he is committed 
to prison until he executes the deed. 

It will be observed, therefore, that the general field of the 
jurisdiction of courts of chancery is susceptible of three great 

» For a discussion of the authorities See also Bowser v. Cessna, 62 Pa. 148; 
upon this interesting point, see 1 Sug. Thompson v. Sheplar, 72 \d. 160 
V. & P. 542 (8th Am. ed. by Perkins). 



Cil. II.] GENEBAL OUTLINE OF EQUITABLE JURISDICTION. 31 

divisions, viz., I. Equitable Titles; II. Equitable Rights, or 
Equities; and III. Equitable Remedies. 

It will be convenient, however, not only to point, out the 
above general subdivisions, .but to give also a brief summary, 
or, as it were, catalogue, of the subjects of equitable jurisdic- 
tion. 

20. Subjects of Equitable Jurisdiction; Trusts. 

The first and perhaps the most important of these subjects 
is that of Trusts. 

A Trust is the beneficial title or ownership of property of 
which the legal title is in another. The person in whom the 
legal title is vested is' called the trustee, and the person for 
whose benefit the trust exists is called the cestui que trust-. So 
far as the duties of the trustee are concerned, trusts may be 
divided into active or special, and passive or simple trusts.^ 
An active trust is one in which the trustee has some active 
duties to perform, such as to collect the rents and profits of 
an estate, and pay the net income to a married woman for her 
separate use; or to pay debts or legacies, or the like. A 
passive trust is one in which the trustee is the mer'eTiolder 
of the legal title, which he is compelled to convey to the cestui 
que trust whenever he is called upon to do so. Trusts are 
also either executed or executory. An executed trust is one 
in which the estates and interests in the subject-matter of 
the trust are completely limited and defined by the instru- 
ment creating the trust, and require no further instruments 
to complete them. An executory trust is where the instru- 
ment creating the trust ds intended to be provisional only, 
and further conveyances are conteriiplated in accordance" 
with, the terms of the .trust, and whereby the same may be 
effectually carried out.^ 

Trusts may also take their name from the purposes for 
which they are created, e. g., trusts may be either private or 
public trusts; they may be either trusts lawful or trusts 
vmlawfuL 

The division of trusts, however, which is generally made 

» Lewin (12th Eng. ed,), 16. ' Id. 127. 



32 GENERAL OUTLINE OF EQUITABLE JURISDICTION. [CH. D» 

ior the purposes of a treatise on equity, is one based upon the 
manner in which trusts are created, and it is plain that this' 
may be in one of two ways — either, first, by act of party, or, 
second, by act of law. Trusts,. as respects their mode of 
creation, are therefore divisible iato express and implied 
trusts; and implied trusts are in this T;reatise again sub- 
divided into resulting trusts and constructive trusts. 

Express trusts, as a general rule, may be created by parol; 
and no particular form of language is necessary, but any 
words which sufficiently indicate intention will be competent 
to create a trust, i Trusts in respect to real estate are, how- 
ever, required by the Statute of Frauds in England to be in 
writing; and similar statutes have been passed in nearly 
all of the United States. 

Express trusts may be created either by direct fiduciary 
expressions, or by precatory words, or by words indicating 
that a power is to be used in trust. 

Of trusts Jby direct fiduciary expressions nothing need, at 
present, be said in explanation. 

Trusts by precatory words arise where a testator has not 
used words of direct command, but expressions of entreaty 
or recommendation, which are construed, for the purpose of 
effectuating intention, to be equivalent to imperative words. 

Powers in trust are those powers, the exercise of which is 
not left to the discretion of the donee of the power, but which 
are considered as obligatory because they are to be exercised 
for the benefit of some third persons, and the duty of the 
donee of the power is therefore looked upon as a trust. ' ■ 

A resulting trust may arise ra several ways, one of the 
most usual being where a purchase is made and the money 
paid by one man, and the title to the property is taken in the 
name of another. Here the law implies a trust, on the part 
of the latter, to hold the legal title for the benefit oi the actual 
purchaser. So, too, where there is a gift by wiU to trustees 
for a particular purpose which fails, a trust results for the 
benefit of the heir-at-law or next of kin, according as the 
gift is of real or personal estate. The other cases of resulting 
trusts are those in which the trustee or other fiduciary buys 

' Isenberg v. Huntingdon Millwork Co., 62 Pa. Sup.. 494. > 



CH, II.] GENERAL OUTLINE OP EQUITABLE JURISDICTION. 33 

property in his own name, but with trust funds — ^in which 
case a trust will result for the benefit of the party whose 
funds are thus employed; and where a conveyance is made 
without any consideration, and it appears from circumstances 
that the grantee is not intended to take beneficially, the rule 
then bein^ that a trust results to the grantor. 
- A constructive trust may arise either out of fraud or in the 
absence of fraud. The most numerous cases of constructive 
trusts are thoSe which spring from actual or presmnptive 
fraud, and will be treated of under that head of equitable 
relief. A trust which arises from actual fraud is where (for 
example) a conveyance is obtained by direct deceit or mis- 
representation. In such a case, equity affords redress by 
treating the wrongdoer as a trustee of the legal title of the 
property, for the benefit of the injured party, and directing 
a conveyance. 

Presmnptive fraud is where the law supposes that a trans- 
action is fraudulent from the mere circumstance of the rela- 
tions of the parties or the nature of the transaction, without 
any proof of actual deceit. Thus a bargain between a solic- 
itor and client, a guardian and ward, a parent and child, a 
trustee and cestui que trust, or other persons standing in 
a confidential or gMosi-confidential relation, touching the 
subject-matter as to which the fiduciary relation exists, 
will be set aside at the option of the client, ward, child, or 
cestui que trust, as the case may be, unless the entire fairness 
of the transaction is abundantly proved. In this case, also, 
equity uses the theory of a trust for the purpose of effecting 
relief, in the same way as in cases of actual fraud. 

A constructive trust, in the absence of fraud, may arise in 
several ways. Thus where a person acquires trust property 
without notice of the trust, but without having paid any 
value for it, he 'is not entitled to hold it discharged of the 
trust, but is looked upon in equity in the same light as a 
trustee, and is compelled to convey or otherwise dispose of 
the property accordingly. Another common instance of 
constructive trusts occurs in the renewal of leases; the rule 
being that if a trustee or executor, or even an executor de son 
3 



34 GENERAL OUTLINE OF EQUITABLE JUKISDICTION. [CH. II.' 

tort, renew a lease in his own name, he will be deemed, in 
equity, a trustee f6r those interested in the original term.^ 

Another instance of a constructive trust in the absence of 
fraud is where "a binding contract is made for the sale of real 
estate. In such a case, before the conveyance is executed, , 
equity treats the vendor as a trustee of the land for/ the 
benefit of the vendee, and the latter as a trustee of the 
purchase-money for the benefitol the former. This doctrine 
is properly a branch of the subject of specific performance, 
and will be treated of under that head. 

Having noticed the manner in which trusts are called into 
being, the next thing to be considered is "for what purposes 
are trusts usually created?" One of the most frequent^ and 
important of these purposes is to secure the property of 
married women; and this is eflfected by a gift to her sole and 
separate use. The separate use is a creature of equity; and 
is, perhaps, one of the best illustrations which could be given 
of the manner in which chancery courts, in certain cases, 
depart from the rules of common law. " By the latter, a hus- 
band was entitled to all his wife's personalty in possession; 
to her choses in action, if he chose to reduce them into posses- 
sion, or (as the rule is 'sometimes held) convert them to his 
use ; and to a life estate in her realty. Equity, for the benefit 
of married women, allows gifts to be made to her by which 
her husband may be deprived of all these rights. 

By conveying the estate to a trustee for the sole and sep- 
arate use of a married woman, the corpus of the estate may 
be secured from any control of the husband, or from any 
liability to his debts, and the income paid directly to the 
wife. In England, and in some of the states of the Union, 
the wife has the same control over the separate estate 
(unless expressly restrained) as she would have if unmarried. 
In other states she has only those powers which are 
conferred upon her by the instrument creating the 
estate. 

The descent and distribution of separate use estates are 
the same as those of legal estates, except (of course) where 

> Lewin (12th Eng. ed.), 201. 



CH. II.] GENERAL OUTLINE OF EQUITABLE JURISDICTION. 35 

differences are made by statute; and this rule indeed applies 
to all equitable estates, with the qualification that a womaii 
is not dowable out of an equitable estate, although a man 
is entitled to his tenancy by the curtesy. 

Connected with the subject of a married woman's eq- 
uitable separate estate is what ik known as her equity to a 
settlement. This arises when a husband is obliged to go into 
a court of chancery for the purpose of reducing his wife's 
choses in action to possession; or getting in any property 
that belongs to her. In such a case, the court refuses to aid 
the husband, except upon the terms of making a reasonable 
settlement upon the wife out of the property. 

Gifts directly from the husband to the wife will also 
require notice imder this head— as these gifts are void at 
law, and are upheld by virtue of eqmtable doctrines 
only. 

Another important class of trusts is that for charitable 
purposes. These trusts are of a public nature, and differ 
from other trusts in several important particulars, among 
which two may be especially mentioned, viz., first, that 
charitable trusts do not require such a degree of certainty 
in the description of the beneficiaries as is requisite in an 
ordinary private trust; and, secondly, such trusts are not 
subject to the ordinary rules in relation to perpetuities. 
They depend very much in England, and in many of the 
United States, upon a statute passed in the reign of Queen 
Elizabeth, and constitute an important branch of equitable 
jurisdiction. 

A court of chancery always exercises a supervision and 
control over trustees in the administration of their trusts. 
Any trustee is entitled to come into court for advice or 
assistance, or for the purpose (in a proper case) of being dis- 
charged ; and any cestui que trust may invoke the interposition 
of the chancellor in cases of breach or abuse of the trust, or 
to have a vacancy in the oflSce of trustee supplied. 

The duties of trustees, of course, vary with the character 

'of the trust and the nature of the subject-matter thereof. 

They may be said to be summed up in the duty faithfully 



36 GENERAL OUTLINE OF EQUITABLE JURISDICTION. [CH. 11. 

to attend to the interests of the cestui que trust, and to ab- 
stain from making any use of the trust property for the 
trustee's own benefit. 

Trustees, according to the English rule, are not entitled 
to compensation; but in this country the law is generally 
otherwise. 

21. Mortgages. 

The case of Mortgages is the next head of jurisdiction in 
which an independent title is created and recognized in 
equity. A mortgage is a conveyance of real estate to secure 
a debt due by the mortgagor (the party who executes the 
conveyance) to- the mortgagee (the party to whom the con- 
veyance is made), coupled with a clause of defeasance by 
which upon the payment of the debt on a day specified, Hhe 
title to the property revests in the mortgagor. At law, if 
the day for payment passed by, the estate became absolute 
in the mortgagee, and the mortgagor's title was wholly gone. 
Equity, however, stepped in to his rehef, and recognized a 
4itle still existing in the mortgagor, whereby he was allowed 
a right to redeem the mortgaged property on any subsequent 
-day by/ paying the debt with interest. This is called the 
mortgagor's "equity of redemption," a right which is now 
inseparably connected with every mortgage. 

On the other hand, equity gives a remedy, unknown to the 
common law, by allowing the mortgagee to foreclose (as it is 
called) this equity of redemption. In a foreclosure suit a de- 
cree is entered whereby a^iother day is fixed for redemption; 
and if the mortgagor does not take advantage of the new 
opportunity thus afforded him, his right is forever gone. The 
existence of the relation between a mortgagor and mortgagee 
(which relation is a peculiar one) produces certain con- 
sequences which will be noticed in the proper place. 

22. Assignments. 

The last equitable title is that which grows out of the as- 
signment of choses in action, which species of property could 
not be transferred at law, but assignments of which are up- 



CH. II.] GENERAL OUTLINE OF EQUITABLE JURISDICTION. 37 

held in equity when th'ey are made for a valuable considera- 
tion and do not contravene any rule of public policy. In 
this case, as in that of trusts, equity creates a new title, co- 
existent with the legal title, and which (as has been already 
explained) will be enforced either by compelling the assignor 
to allow the assignee to use his name in an action at law, or 
by affording direct relief by bill in equity when any difficulty 
in bringing the legal action exists. By such assignments, not 
only choses in action, but expectancies, contingent interests, 
and property to be created or acquired in the future may be 
transferred, and the title thus acquired will be recognized 
and protected by chancery courts. 

23. Accident and Mistake. 

, Besides creating new titles, independent of legal OAvner- 
ship, equity also affords relief by setting up and eWorcing 
equitable rights in regard to existing legal titles. This is 
done by virtue of certain doctrines by which common-law 
rights of enjoyment are modified or controlled. The first 
of these equities which will be noticed are those of Accident 
and Mistake. 

. The relief afforded under the head of Accident springs 
from the ancient jurisdiction of the court of chancery in what 
were known as "cases of extremity." It is now exercised 
principally in three cases: first, in that of lost instruments; 
secondly, in that of defebtive execution of powers; and, 
thirdly, in the case of penalties and forfeitures. 

The jurisdiction of equity in cases of Mistake grew out of 
the great credit which jeommon-law courts gave to a sealed 
instrument, and to the inability of these courts to afford an 
adequate redress in all cases of mistake. 

Mistakes are of two kinds, mistakes of law and mistakes of 
fact. As a general rule, mistakes of law cannot be reheved 
against even in equity; although the tendency is to grant 
relief in all cases in which there exists any element of mis- 
representation or even surprise; but for mistakes of factj if 
mutual, material, and not induced by negUgence, reUef may 
be had upon a proper case being shown. Such relief is often 



38 GENERAL OUTLINE OF EQUITABLE JURISDICTION. [CH. II. 

administered when powers are defectively executed through 
mistake. 

24. Fraud — Division of Fraud. 

The next equitable rights which will require notice are 
those which grow out of Fraud. 

Fraud, indeed, vitiates transactions at law as well as in 
equity; but the jurisdiction of chancery is superior to that 
at common law, for two reasons — ^first, because in equity 
fraud has a more extensive signification than at law; and, 
secondly, because the relief afforded is much more complete. 

It is, however, frequently difficult to say with precision 
what cases fall under the head of fraud as a distinct ground 
for relief in equity, because fraud so often exists in connec- 
tion with other reasons for the assistance of a chancellor that 
it is hard to determine on what particular basis the relief is 
afforded. Thus, as we have seen, certain kinds of construc- 
tive trusts are based upon fraud; in other words, equity 
considers that, in consequence of certain fraudulent conduct, 
the relationship of trustee and cestui que trust is called into 
being, and the rights of the parties are determined upon the 
footing of that relation. The ground of rehef, therefore, is 
both fraud and trust. So, also, certain equitable remedies 
are founded upon the idea of doing complete justice in cases 
of fraud. Thus, if a person has been fraudulently induced to 
sign a bond, equity will not compel the obligor to wait until 
an action at law is broughtthereoUj, and then make defence, 
but will afford relief, not only complete, but also unmediate, 
by directing the fraudulent instrument to be delivered up 
and cancelled. It will be seen, therefore, that this subject 
of fraud not only furnishes ground for relief at law, hut also 
runs into at least two other distinct heads of equity. 

There are, however, certain classes of cases in which fraud 
alone gives jurisdiction, and it has, therefore, been ordinarily 
considered as one of the special heads of the jurisdiction of a 
court of chancery, and will accordingly be so treated in this 
work. 

Another and very important reason for so treating it is the 



CH. II.] GENEKAL OUTLINE OF EQUITABLE JURISDICTION. 39 

fact that in many states of the Union it is made one of the 
cases in which equity "powers are granted to the courts. In 
those states, therefore, where these powers are not general, 
but limited, it is necessarily of no little consequence to deter- 
mine exactly what is meant by the language of the statute, 
and therefore to know what is the nature and what the 
bounds of chancery jurisdiction on this subject. 

Fraud has been divided, according to the classification of 
Lord Hardwicke in Chesterfield v. Janssen,^ for the purpose of 
convenient consideration, into four classes, viz., 1. Fraud 
arising from the facts and circumstances of imposition; 2. 
Fraud arising from the intrinsic matter of the bargain itself; 
3. Fraud presumed from the circumstances and condition of 
the parties contracting; 4. Fraud affecting third persons 
not parties to the transaction. This classification has been 
adopted in the present treatise. 

26. Notice; Estoppel; Election. 

Growing out of the general subject of fraud -is that of No- 
tice, which embraces also the subordinate equities of bona 
fide purchasers and the application of purchase-money. 
Notice is a doctrine which is recognized for the purpose of 
protecting equitable titles. At common law the purchaser of 
a legal title acquired the absolute property in the subject. 
In equity, however, if he has notice of an equitable title, he 
will be considered as a trustee of the legal title for the benefit 
of the equitable owner. On the other hand, want of notice 
may be a protection to a purchaser against the assertion of 
an equitable right. In such a case he sets up the plea of being 
a bona fide purcliaser for a valuable consideration without 
notice; and is thereupon entitled to the favorable considers, - 
tion of a court of chancery. 

Notice may be of two kinds: first, actual; and second, con- 
structive; and actual notice may again be divided into direct or 
positive notice, and indirect, implied, or presumptive notice. 
The doctrine of lis pendens is akin to but not founded on the 
same reason as that of notice, and will be treated of under the 

» 1 Atk. 301; 2 Ves. 125; 1 Lead. Cas. Eq. •541 (773, 4th Am. ed.). 



40 GENERAL OUTLINE OF EQUITABLE JURISDICTION. [CH. II. 

same head. It is (stated briefly) a principle by which a suit 
in chancery, duly prosecuted ia good faith and followed by a 
decree, is held to bind every person who acquires from a 
defendant pendente l^tp an interest in the subject-matter of 
the litigation, and so that such person takes subject tp the 
legal and equitable rights of the plaintiff, as charged in the 
bill and established by the decree. 

Another equity springs, also, from the general head of 
Fraud, but requires a separate consideration, that, namely, 
of Estoppel. Estoppel is the agency of the law by which 
evidence to controvert the truth of certain indisputable 
admissions is excluded.^ Estoppels, in general, may arise 
either by matter of record, of deed, or in pais. Equitable 
estoppels fall xmder the last class, and they grow out of 
representations which, after they are made, cannot be de- 
nied, but must be adhered to by the party making them. 
The representation which wiU operate as an estoppel must 
be one that is either a suggestion of falsehood, or a conceal- 
ment of truth when there is a duty to speak; it is always 
external to the transaction; and it may take place either in a 
transaction eflfected^between the party alleging the estoppel 
and the party estopped, or in one between the party alleging 
the estoppel and some third party. 

Somewhat akin to the doctrine of estoppel, and therefore 
properly to be considered in immediate juxtaposition, is the 
doctrine of Election, by which a party is compelled to choose 
between inconsistent benefits, and is precluded (aftw having 
once exercised his choice) from insisting upon rights which 
he would otherwise be perfectly free to assert. Thus, if a 
testator gives money or land to A., and, by the same will, 
gives something of A.^s to B., here A. must elect either to give 
effect to the will by allowing B. to have the property which 
the testator intended should go to.hun, or to assert his right 
to his own property, in which case he must make good its 
value (out of the gift to himself) to the disappointed ben- 
eficiary. An electiofi may be either express or implied. In 
order that the doctrine may be called into play it is nec- 

' Bigelow on Estoppel, page 489 et »eq (6Ui edition). 



CH. II.] GENEEAL OUTLINE OP EQUITABLE JUKISDICTION. 41 

essfury that the testator should affect to dispose of property 
which is not his own, and should also make a valid gift of his 
own property; and it is further requisite that the two-fold 
gift should be made by the same instrument. In order to 
make a valid election the party electing must have adequate 
information in regard to the values of the two pieces of 
property between which he is to choose; and he is entitled 
to the assistance of the court for the purpose of determining 
the values. As a general rule, an election can be made only 
by persons sui juris, but a court of equity will sometimes 
elect for the benefit of a feme covert or an infant. 

26. Conversion. 

The next equity which will be considered is that of Con- 
version, by which is meant a change of property from, real 
, into personal, or from personal into real, not actually taking 
place, but presumed to exist only by construction or intend- 
ment of equity. This result may happen under a will, or 
by an, instrument inter vivos. A devise of land to trustees, 
with imperative directions to sell and divide the proceeds 
between certain persons, would be an illustration of a con- 
version under a will; a binding contract for the sale of realty 
would be an example of the appUcation of the same doctrine 
to a transaction inter vivos. In both .cases the land would, 
in the eye of equity, be considered, for certain purposes of 
devolution, turned into money from the date of the death of 
the testator in the one case, and froih the date of the con- 
tract in the other; and in the event of the death of the bene- 
ficiary or the vendor, would be distributable" as personalty 
to the next of kin, and would not descend to the heir as real 
estate. , 

To effect a conversion by will it is generally necessary that 
the words be imperative; and by contract, that Its terms 
should be binding. Certain exceptions, however, to these 
general rules may occasionally OQCur, 

The purposes for ^hwh. a conversion is designed sometimes 
wholly or partially fail, and interesting questions thfenarise 
as to the effect of this failure upon the subsequent devolution 



42 GENERAL OUTI/INfe OF EQUITABLE JURISDICTION. [CH. H. 

of the estate. When the failure is total the rule is very simple, 
as no conversion then takes place. In cases, however, of 
partial failure, the rules are more difficult of application, and 
cannot be condensed in a brief synopsis. 

The parties interested in an estate directed to be converted 
may, if they all concur, eleat to take it in its present and not 
in its changed state. By such an election there is effected 
what is called a re-cojiversion, by which the property is con- 
sidered as retained in its actual condition, and is transferable 
and descendible accordingly. Re-conversion may sometimes, 
also, be effected by operation of law. 

27. Adjustment; and herein of Set-Off, Contribution, Sub- 
rogation, Exoneration, Marshalling. 

' The next class of equitable rights which will require con- 
sideration embraces those which may be comprehended 
under the general head of Adjustment, and which includes 
the subordinate heads of Set-off, Contribution, Exoneration, 
Subrogation, and Marshalling. These equities are -called 
into play for the purpose of securing the orderly and equi- 
table adjustment 'of liabilities against the parties by whom, 
and in favor of those to whom, they are justly due; and they 
all depend upon the general equitable principle that burdens 
ought to be thrown upon those who should justly Jaear them, 
but only in their due proportion and in their proper order, 
and that benefits should be secured to those who are of right 
entitled thereto, with a just regard to the rights of others. 

The right of Set-off, although it is a right of equitable 
origin, has, nevertheless, been so effectually introduced by 
statute both in England and in this country, that the occa- 
sions for its application by courts of chancery are exceedingly 
rare. Mere matters of set-off will not give the court juris- 
diction, for such rights can be effectually tried at law; but 
where there is anything peculiar in the case, so as to render 
it impossible for exact justice to be done by a court of law 
under the statutes, a court of chancery will afford relief 
through thfe medium of an equitable set-off. ^ 

' Porter i>. Roseman, 165 Ind. 260. 



CH. II.] GENERAL OUTLINE OF EQUITABLE JURISDICTION. 43 

The equity of Contribution arises when one of several par- 
ties, who are liable to a common debt or obligation, discharges 
the same for the benefit of all. In such a case he has a right to 
call upon his co-debtors for contribution. This right is most 
frequently exercised in the case of sureties; as is also the 
equity of Exoneration, which is a right of a person secondarily 
liable to call upon the party primarily liable, to discharge 
the debt, or to reimburse him if he has paid it. 

The case of suretyship, however, is but an illustration of 
both of these rights; and the same equities are applicable to 
oth^r relations out of which joint or successive liabilities 
have sprung. 

The right of Subrogation is an auxiliary equity, called 
into existence for the purpose of enabling a party secondarily 
liable, but who has paid the debt, to reap the benefit of any 
securities which the preditor may hold against the principal 
debtor, and by the use of which the party, paying may thus 
be made whole. ^ Thus a surety who pays a debt which has 
been reduced to judgment is entitled to have the judgment 
kept alive for his benefit, and to enjoy, as against the princi- 
pal debtor, the advantages which could have been claimed 
by the judgment-creditor. 

None of these equities is founded upon contract, but 
upon general principles of equity and, being all rights of a 
purely equitaUle nature, they are subject t<i the general 
qualification by which the exercise of all such rights is con- 
trolled, viz., that they must not be asserted in such a way, or 
under such circumstances, as to do violence to the rights and 
equities of other parties. 

The doctrine of Marshalling grows out of the principle 
that a party having two funds to satisfy his demand shalt 
not, by his election, disappoint a party who has only one 
fund.'' Thus, a person who has a mortgage on two parcels 
of land ought not, in fairness, to resort in the first instance 
to the parcel upon which there also happens to be a junior 
mortgage which is not otherwise secured; for in so doing the 

' Forest Oil Co.'s Appeals, 118 Pa. ' Approved in Bank of Commeroa 
14S. V. First ^Tat. Bank, 150 Ind. 590. 



44 GENERAIi OUTLINE OF EQUITABLE JURISDICTION. [CH. 11. 

junior mortgagee might be altogether cut out. Equity, 
however, is loath to interfere with the rights of a creditor to 
enforce payment out of any of his securities, and therefore 
the remedy- usually afforded to the junior disappointed 
mortgagee is to substitute him to the rights of the. paramount 
mortgagee as against the other property. 

The doctrine of Marshalling is applied in the administra- 
tion of estates of debtors both during their Ufetime and after 
their death; although in this country the necessity for its 
application to the estates of decedents has been very much 
lessened by the numerous legislative enactments whereby 
the distribution of the assets of a deceased debtor is regulated 
and controlled. 

28. Equitable Liens. 

The last equitable rights which will be noticed are Liens. 
A lien is a right. 'at common law; but it is a right which is 
inseparable from the possession of the article on which the 
lien is claimed to exist. 

In equity, however, a lien may exist altogether independ- 
ently of possession, and under circumstances which would give 
the party no commoii-law right at all. There are several - 
of these equitable liens, one of the most important of them 
being the vendor's Uen upon real estate for unpaid purchase- 
money. This lien constitutes a charge upon the estate 
in the hands of the vendee, but it does not come into actual 
existence until a bill is filed to assert it. It is recognized in 
many of the United States; in others, however, it has never 
existed, or has been aboUshed or circumscribed by statute. 
Equitable liens are also created by deposits of title-deeds, by 
mortgages and pledges of personal property, and by other 
contracts which in equity are treated as giving the party for 
whose benefit they are made distinct rights in specific prop- 
erty instead of general claims against the other party for 
damages. These hens have been appUed to many classes of 
cases in modem times, and \he sphere of their operation may 
be said to be constantly widening. 



CH. II.] GENEEAL OUTLINE OF EQUITABLE JURISDICTION. 46 

29. Equitable Remedies; Specific Performance. 

The next general division of chancery jurisdiction is that of 
Equitable Remedies; and the first, and one of the most im- 
■ portant of these, is Specific Performance. 

At common law the general rule was that all injuries were 
to be redressed by damages; and relief by a restoration of thp 
injured party to the actual enjoyment of the thing or right 
of which he had been unjustly deprived was never afforded 
except in the two cases of detinue and replevin. In equity, 
however, the rule is just the other way. -A chancellor always 
aims at restoring the injured party to the exact position 
which he ought to have occupied if the wrong had never taken 
place. One of the means by which this object is attained is 
the equitable remedy by specific performance, which is, per- 
haps, most frequently used for the purpose of enforcing 
contracts for the sale of real estate, although it may be and 
is applied to other cases in which the common-law remedy 
is insuflBcient, by reason of _ the inadequacy of pecimiary 
damages, or from the impossibility of estimating them. This 
equitable remedy> however, is not applied except under 
certain restrictions and within- certain limits. 

Thus it is a fundamental principle that specific perform- 
ance will not be decreed unless the contract sought to be 
enforced is based on a valuable consideration, for the obvious 
reason that as the inadequacy of damages is the ground for 
equitable interference, there can be no such inadequacy 
where there is no damage sustained, as is the case with a 
mere volunteer. 

Again, the" complainant must show either that no damages 
could be recovered at law, or that the damages which might be 
recovered would fall short of affording complete redress. The 
reason for this rule is the obvious one that, if money would 
operate as a full measure of redress, there is no ground what- 
ever for the interference of a chancellor, as the complainant 
can get all he ■wrants at law. It must, moreover, be observed 
that the jurisdiction to decree specific performance is always 
exercised subject to general equitable considerations; and 
that, therefore, a court of equity wilL not aid a complainant 



46 GENERAL OUTLINE OP EQUITABLE JURISDICTION. [CH. ll. 

if he has been guilty of laches and negUgence, or if equitable 
considerations interpose upon the other side — such as that 
the contract is hard and oppressive, or that the condition of 
things has materially changed, or the like. 

Equity will not enforce a contract within the Statute of 
Frauds (e. g., an agreement to sell real estate), unless it is re- 
duced to writing; but to this rule there are some exceptions. 
Thus, parol contracts may be enforced where there has been 
a sufficient part performance of the contract, or where its re- 
duction to writing has been, prevented by fraud, or where the 
contract is admitted by the defendant's answer, and the 
statute is not set up as a defence. 

Equity, also, in applying this equitable remedy, will some- 
times c^ll into play subordinate equities, by decreeing specific 
performance with coriipensation for defects, and by giving 
time to make out a title beyond the day fixed in the contract. 
Upon the principle of specific performance, moreover, parties 
may be compelled to make good representations upon the 
faith of which other parties have been induced to act, and, 
• upon the same principle, negative covenants may be enforced 
in terms. 

30. Injunctions. 

The' equitable remedy by Injunction may be described as 
in a certain sense the complement of the remedy by specific 
performance; as in the latter case a party is compelled to do 
what it is his duty to do; whereas by injunction he is re- 
strained from doihg that which he ought not to do. Injunc- 
tions, however, are sometimes of a mandatory character, in. 
which case they compel the performance of an act, and are, 
therefore, equivalent to a decree for specific performance. 
An injunction, in its legal sense, may consequently be defined 
to be a writ remedial issuing by order of a court of equity, 
commanding a defendant to perform some act, or restrain- ' 
ing a defendant from the commission or. continuance of 
some act. The writ is, therefore, either mandatory or pro- 
hibitory. Injunctions are also either interlocutory, i. e., made 
during the progress of the cause, or perpetual,!. e.,made upon 



CH. II.J GENERAL OUTLINE OF EQUITABLE JURISDICTION. 47 

:final decree. They are either ex -parte or after hearing; and 
■were, formerly, either common or special; but the common 
injunction is now practically out of use, and all injunctions 
are -special — i. e., granted upon the merits as disclosed by 
affidavits or other proofs. 

The purposes for which injunctions are issued are very nu- 
merous, and extend, in fact, over nearly the whole field pf 
equitable jurisdiction. They may be divided into two gen- 
eral divisions, namely, first, those cases in which the writ 
issues for the purpose of protecting equitable rights; and, 
secondly, those in which the writ issues for the purpose of 
protecting legal rights. 

Injunctions are used for the purpose of protecting equitable 
rights in two ways: in the first place, by enjoining proceed^ 
ings in the. copmion-law courts, whereby and wherein such 
rights may be violated or disregarded; and, in the second 
place, by interposing for the protection of such equities when 
injury thereto is threatened by other means than through 
legal proceedings. 

Under the first of these heads it is well settled that Equity 
will interfere to restrain proceedings at law whenever, 
through fraud, mistake, accident, or want of discovery, one 
of the parties in a suit at law obtains, or is likely to obtain, 
an unfair advantage over the other, so as to make the legal 
proceedings an instrument of injustice. 

It is diSicult, perhaps, to mark out with precision the 
exact limits within which a court of equity will interfere 
with proceedings at law; but it may be stated generally 
that' such an injunction will be granted whenever, in the 
common-law action, an equitable title is not recognized, or 
an equitable right not enforced, or where exact and connplete 
justice would not be done between the parties by reason of 
the want of an equitable remedy. 

A court of equity, moreover, frequently interferes by in- 
junction for the purpose of preventing uimecessary or vex- , 
atious litigation; and this it does in many ways, viz., by 
compelling a party to elect between two remedies; by restrain- 
ing a party from bringing an action in another court after a 



48 GENERAL OUTLINE OF EQUITABLE JUEISDICTION. [CH. 11, 

court of equity has once obtained possession of a cause; by 
putting a stop to repeated attempts to .litigate the same 
quesjion; and by interfering to protect a party who is liable 
to discharge some debt, duty, or obligation from vexatious 
suits by two or more parties severally claiming- to be entitled 
,to the benefit of such debt, duty or obligation. Bills to re- 
strain repeated attempts to litigate the same question are 
termed bills of peace, and are of two kinds, being filed either 
(first) to prevent the vexatious occurrence of litigation by a 
numerous class insisting upon the same right, or (second) to 
prevent the same individual from reiterating an unsuccess- 
ful claim. Bills to protect parties who are liable to seyeral 
claimants in respect of the same debt, duty, or obligation, 
are called bills of interpleader, and are based upon the ground 
that a mere stakeholder, who claims no interest, ought not 
to be troubled by the actions of conflicting parties who do 
claim an interest. Such a bill, therefore, must show title in 
two claimants, and it must not show any interest in the 
subject-matter on the part of the party filing it. 

Of the second general class of cases in which equity inter- 
feres by injunction for the purpose of protecting equitable 
rights, bills to restrain a trustee from conmiitting breaches 
of trust, to resti'ain a partner fro'^ a violation of his duty as 
partner, or to restrain the disclosure of confidential communi- 
cations or of trade secrets, may be taken as illustrations. In 
such cases equitable titles and rights, and not those of com- 
mon law, are infringed; and hence injunctions for the pur- 
pose of protecting them fall properly under the first of the 
two grand classes into which these writs have been divided. 

Again, equity will interfere for the purpose of protecting 
legal rights. The occasions which most usually call for the 
interference of equity for this purpose are cases of waste, 
trespass, nuisance, patent-right, copyright, literary property, 
trade-marks, alienation of property pending litigation, 
transfer of negotiable instruments, protection of property 
pending Utigation, breach of negative covenants, and cor- 
porations. 

The nature of these injuries and the character of the 



e'H. II.J GENERAL OUTLINE OP EQUITABLE JURISDICTION. 49 

relief which, equity applies in each particular case will be 
explained. i 

31. Re-execution; Reformation; Rescission; Cancellation. 

Akin to the equitable remedies of specific performance and 
injunction are those of Re-execution, Reformation, Rescis- 
sion and Cancellation. All these remedies together embrace, 
as it were, the complete circle of equitable relief in the case 
of contracts and duties. Thus, a party may be held to a lit- 
eral compliance with his contract by a decree for its specific 
performance; or he may be restrained from a violation of the 
contract by a writ of injunction; or, finally, if the written 
paper, which is the evidence of the -contract, be lost, a re- 
execution may be ordered; if the contract has been erroneously 
expressed, a reformation may be decreed; and if, on the other 
hand, it has been obtained through fraud, it may be rescinded, 
andN the documentary evidence may be directed to be de- 
livered up and cancelled. Re^xecution, reformation, and 
cancellation 'are the means whereby the equities of accident, 
mistake, and fraud are ordinarily worked out. Thus, where 
instruments are lost through accident, the equitable remedy 
which is applied is re-execution; where an instrument has 
been erroneously framed through mutual mistake, so that 
it does not express the intention of the parties, and the 
mistake is clearly proved, the redress which is afforded is 
reformation; while,' where a contract has been entered ipto 
in ignorance Or mistake, or is tainted with fraud, the relief 
which a chancellor affords is rescission and cancellation. 

32. Account; Dower; Partition; Confusion of Boundaries; 
Rent. 

The next, equitable remedies which demand consideration 
are bills for Account, for Dower, for Partition, in cases of 
Confusion of Boundaries, and for the ascertainment of Rent. 
Bills for account arose from the inadequacy of the remedies 
at common law, those reiriedies being exceedingly limited in 
their scdpe and cumbersome in their operation. In the equi- 
table me.thod of procedure, ground is first laid by obtaining 
4 



50 GENERAL OUTLINE OF EQUITABLE JURISDICTION. [CH. II. 

discovery (when necessary) from the defendant, and the 
cause is then referred to a master before whom the account 
is taken. 

Bills for partition and -dower abo had their origin in the 
inadequacy of the coirimon-law remedies. The superiority of 
the chancery practice in these cases is due to the fact that, 
discovery may in this way be had, that masters and commis- 
sioners may be appointed to examine and report upon the 
rights /Of the parties, and that the decree may be moulded so 
as to embrace and adjust those rights in the subject-matter 
of dispute. 

The equitable remedy for the ascertainment of boundaries 
is used when boundaries have become confused through the 
misconduct of the defendant, or of those under whom he 
claims ; and a bill for the payment of rent will only lie in ex- 
traordinary cases, as where the days of payment are uncer- 
tain, or the remedy by distress has been lost without any 
fault of the owner of the land. 

33. Partnership Bills; Creditors' Bills; Administrktioii 
Suits. , 
The equitable remedy of Partnei^ship Bills is chiefly based 
upon the necessity for some kind of procedure by which part- 
nership affairs can *be wound up and partnership assets ad- 
ministered; a procedure which, it is manifest, is not afforded 
by any of the forms of action at common law. Other re- 
lief is also incidentally afforded in equity. Thus, accounts 
are taken, assets are got in and protected, breaches of part- 
nership duty are enjoined, and sales of partnership effects 
are ordered. A great many desirable results are therefore 
accomplished in -jone suit; and justice is administered not 
only between the partners, but also between the two sets of 
creditors which almost invariably exist in such cases, viz., 
the creditors of the firm and those _of individual partners. 
In settling the conflicting claims of these two classes of 
creditors, certain equitable doctrines are applied by the 
courts, which are based mainly upon the general proposition 
that it is the equity of each partner that firm assets are, in the 



CH. II.] GENERAL OUTLINE OF EQUITABLE JURISDICTION. 51 

first place, to be taken to pay firm debts, and that the equities 
of the creditors are to be worked out through this equity of 
the partners. These doctrines might, with some propriety, 
be noticed under the general equity of adjustment; but their 
intimate connection with the subject of partnership bills 
would seem to render their consideration under the head of 
that equitable remedy still more appropriate. 

The equitable remedy by Creditors' Bills is one which has 
been made use of very frequently in the United States. 
They are used for the purpose of getting at property of a 
debtor which cannot be reached ^at law, either because it, has 
been conveyed away beyond the grasp of an execution, or 
because it is of such a character that it cannot be seized under 
a common law writ. Creditors' Bills may be filed during the 
lifetime of the debtor, or after his death. In the latter case, 
they generally result in Administration Suits, as the executor - 
does not usually admit assets; and, therefore, the decree is 
not simply for the pajnnent of the creditors by whom the 
bill has been filed, but for a general administration of the 
debtor's estate. Legatees also may come into chancery for 
the ascertainment of ^assets and the administration of the 
estate'. 

Under administration suits, also, will be considered cer- 
tain subordinate equities which more frequently arise in . 
bills of this kind; these are the doctrines of Equitable Assets, 
of Performance, and of Satisfaction. In some instances the 
importance of these equitable doctrines has ceased by reason 
of statutory changes in the law. 

34. Infants; Idiots; Lunatics. 

The jurisdiction of the High Court of Chancery in England 
over the estates of Infants results from a prerogative of the 
crown as parens patriae. In the United States this jurisdic- 
tion is not of as much importance as in Englia^nd, the persons 
and estates of minors being generally under the supervision 
of Orphans' Courts, Surrogates' Courts, or Courts of Pro- 
bate, whose powers are regulated by statute. Still, in those 
states whf re Qourts of chancery with general equity powers 



62 GENEEAL OUTLINE OP EQUITABLE JURISDICTION. [CH. II. 

exist, the jurisdiction is still exercised; and in some states such 
jurisdiction is expressly conferred by statute upon the equity 
courts. The principal incidents to this jurisdiction are that 
the ward must be educated under the coutt's superintend- 
, eiice, that his estate must be managed and applied under the 
like superintendence, and tl^t his marriage must be with 
the sanction of the coui-t. 

The jurisdiction of the English Court of Chancery in the 
case of Lunatics and Idiots is peculiar in this respect, viz., 
that it is not exercised in a regular suit; but by the chancellor 
personally on petition, and the appeal, if his order be erro- 
neous, is to the king in council, and not to the House of 
Lords. 

This jurisdiction is^exercised (in the first place) for the pur- 
pose of ascertaining the fact of lunacy; and (secondly) for the 
support of the lunatic and the management of his estate. The 
first end is attained by the issuing of a commission in the 
nature of a writ de lunatico inquirendo, under which the ques- 
tion of liinacy is passed upon by a jury; and the second pur- 
pose is accomplished by the appointment of a committee to 
take charge of the person and estate of the lunatic. 

The care of the persons and estates of lunatics and idiots is 
governed in many states by statutes ; in some states, however, 
courts of chancery exercise jurisdiction over the subject. 

36. Discovery; Commissions to examine Witnesses abroad; 

Perpetuation of Testimony; Examinations de bene 

esse. 
A bill for discovery is one whereby the power of the court 
is invoked for the purpose of compelling the defendant to dis- 
cover and set forth upon oath every fact and circumstance 
within his knowledge, information and beUef material to the 
plaintiff's case. It is an equitable remedy of great antiquity, 
and was formerly of very great importance, as no power to 
elicit testimony from a party to a cause existed at common 
law. At the present day, however, the necessity for the exer- 
cise of this equitable remedy has become much less frequent 
than formerly, as in the federal courts, and in those of most 



CH. 11.] GENERAL OUTLINE OF EQUITABLE JURISDICTION. 53 

of the Uixited States, and of England, parties are now com- 
petent and compellable to testify. 

The general right to discovery is fenced about by certain 
prohibitions and restrictions, whereby the power of the court 
is prevented from being abused, Thus, in the first place, no 
person need discover matters tending to criminate himself or 
to expose him to penalty or forfeiture; in the second place, no 
one is compellable to discover confidential communications 
which have passed between him and his legal adviser; and 
lastly, persons occupying official positions cannot be com- 
pelled to disclose matters of state the publication of which 
would be prejudicial to the community, 

Subject to these restrictions, every competent defendant 
in equity must answer as to all facts material to the plain- 
tiff's case; he must answer to all, and not to a portion only; 
and he must answer distinctly, completely, and without 
needless prolixity, and to the best of his information and be- 
lief. . , - 

A court of equity will not only compel a defendant to 
answer under oath, but will also, where it is necessary, oblige 
him to produce books and documents which are in his pos- 
session or control, which are material to the complainant's 
case, and which do not fall within any of the protecting rules 
mentioned above. In the United States this power is la,rgely 
exercised by common-la\(f courts under statutory provisions. 

Courts of equity also have jurisdiction to issue commissions 
to examine witnesses abroad; to entertain bills for the perpet- 
uation of testimony when a right cajmot be immediately 
determined; and to order examinations de bene esse to be 
used in their own proceedings or in those of other courts. 

36. Bills quia timet; Receivers; Writs of Ne Exeat; Writs 
of Supplicavit. 

The last equitable remedies which require notice are bills 
Quia Timet fihe appointment of Receivers, writs of Ne Exeat, 
and writs of Supplicavit. ■ , 

Bills quia timet are analogous to the hrevia antidpantia 
(writs of prevention) at conmion law. Their object is to 



54 GENERAL OUTLINE OF EQUITABLE JURISDICTION. [CH. II. 

prevent anticipated mischief, or to protect a party from 
vexatious litigation which is Ukely to occur. Thus, where a 
man covenants to save another harmless in respect to certain 
payments which are to be made from time to time, a bill 
may be filed, before any breach, for the purpose of obtain- 
ing a decree that the defendant shaU specifically perfonn 
his covenant, and a reference to a master will be directed, 
to report from time to time any breach that may happen so 
that action of the court may be at once taken thereon. So 
also bills may be filed for the purpose of compelling a party 
who has a prima facie right to assert it within a reasonable 
time. Sometimes, also, bills which are filed for the purpose 
of removing a cloud from a title may fall under the same 
class. 

Another instance of the preventive remedies of the Court 
of Chancery is that of the appointment of receivers. These 
appointments are made for the purpose of preserving prop- 
erty and of preventing threatened or anticipated injury 
thereto. A receiver is an indifferent person between the 
parties, appointed by the court to collect and receive the 
rents, issues and profits of land, or the produce of personal 
estate, or other things in question, pending the suit, which 
it does not seem reasonable to the court that either party 
should do, or where a party is incompetent to do so, as in 
the case of an infant. The objects sought by such appoint- 
ments are, in general, to provide for the safety of property 
pending the litigation which is to decide the rights of liti- 
gant parties, or during the minority of infants, or to preserve 
property in danger of being dissipated or destroyed by those 
to whom it is by law intrusted, or by persons having imme- 
diate, but partial interests therein. This equitable remedy 
is manifestly founded on the want of any such remedy at 
common law. 

A writ of ne exeat is a writ to restrain a person from leav- 
ing the jurisdiction; and was originally used for purposes of 
state only, but is now extended to private transactions. It 
operates in the nature of equitable bail. It is mostly used 
where a suit is commenced in chancery against a party who, 



CH. II.] GENERAL OUTLINE OF EQUITABLE JUBISDICTION. 55 

designing to defeat the other of his just demand, or to avoid 
the justice and equity of the court, is about to go beyond the 
sea, so that the i^uty will be endangered if he goes. This 
writ was originally a high prerogative writ, but it has now 
become an ordinary pirocess of courts of equity, and has 
been extenavely used on both sides of the Atlantic. 

A writ of suppUcavit is a writ granted upon the complaint 
of a suitor of the court that he is abused and stands in danger 
of his life, or is threatened with death by another suitor, who 
is thereupon taken into custody, and must give bail (if the 
case is made out against him) for good behavior. It will be 
observed that this writ is in the nature of process to find secu- 
rities of the peace; and as this end is now ordinarily attained 
by other means, the writ of suppUcavit has fallen into almost 
total disuse, and has been refused in modern cases because 
of the completeness of the common-law remedies. 



CHAPTER 111 



AIAXIMS IN EQUITY 



37. Definition; No wrong without a 

remedy. y 

38. Equity follows the law. ^ 

39. Vigilantihus non dormientibua 

j^quilas subvenit. 

40. Between equal equities the law 

will prevail. 

41. Equality is Equity. 

42. He who comes into Equity must 

do so with clean hands. 



43. He who seeks Equity must do 

Equity. 

44. Equity looks upon that as done 

which ought to be done. 

45. Between equal equities priority 

of time will prevail. 

46. Equity imputes an intention to 

fulfil an obligation. 

47. Equity acts in personam. 

48. Equity acta specifically. 



37. Definition. 

A MAXIM is the embodiment of a general truth in the 
shape of a familiar adage. There are, in equity, several of 
these maxims in which the general principles of chancery 
jurisdiction, and the methods by which they are applied, 
are thus succinctly expressed. 



I. No wrong without a remedy. 

The first of these maxims is. that equity will not suffer a 
a right to be without a remedy.^ The principle expressed by 
this maxim is, indeed, the foundation of equitable jurisdic- 
tion, because, as we have seen, that jurisdiction had its rise 
in the inability of the common-law courts to meet the re- 
quirements of justice.^ 



' 1 Fonb. Eq. B. 1 Ch. 3, § 3, note/. 
ForlUustrations, see Pelton v. Place, 
71 Vt. 430; Swearingen v. Steers, 49 
W. Va. 312; and Peterson v. Vander- 
burgh, 77 Minn. 218. Of course the 
operation of this maxim may be, 
and is, limited by other equitable 
56 



considerations, such as laches, want 
of good faith, etc., some of which 
will be found explained in other 
maxims (infra). See the remarks of 
Williams, J., in Poweia' Appeal, 125 
Pa. 186. 
s Allen V. Elder, 76 Ga. 674; Pratt 



CH. III.] 



MAXIMS IN EQUITY. 



57 



And it may be further observed that equity will not only 
not suffer a right to be unaccompanied by a remedy, but it 
will make the remedy, when applied, a complete one. When 
a court of chancery acquires jurisdiction for any purpose it 
will, as a general rule, proceed to determine the whole cause, 
although in so doing it may decide questions which, standing 
alone, would furnish no basis of equitable jurisdiction.^ For 
example: Courts of equity have no jurisdiction to give dam- 
ages or compensation when these constitute the sole grounds 
of the bill.'' But where the bill seeks other relief which can 
be had in equity alone, and damages are incidental to this 
relief, equity, having proper possession of the cause for the 
purpose of relief which is purely equitable, will proceed to 
determine the whole case.* It needs no other court to finish 



V. Kendig, 128 111. 293; Towns v. 
Smith, 115 Ind. 480; Folsom v. Mc- 
Cague, 29 Neb. 124; Britton v. Royal 
Arcanum, 46 N. J. Eq. 102; Piper 
V. Hoard, 107 N. Y. 73; Currie v. 
Clark, 101 N. C. 321; Helmick v. 
Davidson, 18 Or. 456; Livey v.' 
'- Winton, 30'W. Va. 554; Thomson v. 
Smith, 64 N. H. 412. 

^ Nutbrown v. Thornton, 10 Ves. 
159; Jesus College v. Blqom, 3 Atk. 
262; McGowin v. Remington, 12 Pa. 
56; Hurst v. Brennen, 239 Pa. 223; 
Camp V. Boyd, 229 U. S. 530; Mc- 
Gowan v. Parish, 237 U. S. 296; 
Shaffer v. Carter, 252 U. S. 48— 
a court of equity does not "So justice 
by halves"; Electric Boat Co. v. 
Lake Boat Co., 215 Fed. 383; United 
States V. Ash Sheep Co., 229 Fed. 
479; Zenith Co. v. Stromberg Co., 
270 Fed. 424; Brooks v. Stolley, 3 
McLean, 523; Gunning v. Sorg, 
214 111. 616; Braithwaite v. Henne- 
berry, 222 111. 50; Chicot Lumber 
Co. V. Dardell, 84 Ark. 140; Johnston 
V. Bunn, 108 Va. 493; Pearson v. 
Darrington, il Ala. 169; Eagan v. 
Conway, 115 Ga. 130; Fr3,nklin Ins. 
Co. V. McCrea, 4~ "Green (la.), 
229; Gates v. Paul, 117 Wis. 170; 
Handley's Executor v. Fitzhugh, 1 
A. K. Marsh. 24; Keeton v. Sprad- 



ling, 13 Mo. 321; Armstrong v. 
Gilchrist, 2 Johns. Cas. 424; Sanborn 
V. Kittredge, 20 Vt: 632; Wilhelm'a 
Appeal, 79 Pa. 120; note the distinc- 
tion between McGowin w. Remington 
(supra) and Ahl's Appeal, 129 Pa. 
63, wherq the equity failed for want of 
proof, and the court refused to retain 
the bill, solely for the purpose of en- 
forcing a common-law demand. See, 
also, Burrows v. Leech, 116 Mich. 32, 
where relief was refused; Graeff ». 
Felix, 200 Pa. 139; Shenango Furnace 
Co.j). Fairfield Township, 229 Pa. 376. 

2 Story's Eq. Jurisp., § 794. 

' Person v. Sanger, Davies, 252; 
White V. Fratt, 13 Cal. 521; Wiswall 
V. McGown, 2 Barb. 270; Shepard v. 
Sanford, 3 Barb. Ch. 127; Anderson 
V. Arrington, 1 Jones Eq. 215. See 
Tayloe v. Insurance Company, 9 
How. 405; Van Rensselaer v. Van 
Rensselaer, 113 N. Y. 207; Martin v. 
Maxtin, 44 Kan. 295; Maryland 
Home Ins. Co. i). Kimmell, 89 Md. 
437; Latimer v. Irish-American Bank, 
119 Ga. 887; Kawananakoa v. Puahi, 
14 Haw. 7?; Kelly v. Galbraith, 106 
111. 593; Whalen'i). BiUings, 104 111. 
App. 285; Lyle v. Addicka, 62 N. J. 
Eq. 123. But see Barth v. Deuel, 11 
Colo. 494; Dismal Swamp Land Co. 
V. Macauley, 85 Va. 16. 



58 MAXIMS IN EQUITY. [CH. lit 

its work.^ And the Supreme Court of the United States has 
gone so far as to hold that where jurisdiction in equity has 
been acquired under a bill filed to enjoin, upon equitable 
grounds, a sale under an execution at law, and the facts 
proved do not warrant an injunction, the court may, under 
a cross-bill filed in the cause, decree the payment of the debt 
whereof the collection was sought to be enjoined.^ 

Whenever, therefore, an infringement of legal rights of a 
civil, as distinguished from a criminal, nature exists, for 
which there is no other adequate remedy, a court of chancery 
will be ready to afford one, and to make that remedy com- 
plete.' 
^ Some qualifications^are to be attached to the maxim now 
under consideration. In the first pla ce, the right must be 
one of which municipal law can take cognizance, and not one 
which falls merely within the scope of moral law. There are 
matters in which a man is answerable in foro consdentioe alone 
and with these equity cannot interfere. Thus, while the 
jurisdiction of courts of equity in questions of fraud is very 
broad, it nevertheless does not pretend to set aside a- trans- 
action simply because it is dishonorable or opposed to that 
deUcate sense of right which every conscientious man ought 
to have. In other words, equity does not pretend to enforce 
all the principles of sound morals. "It cannot," to quote 
the language of the Supreme Court of the United States,* 
"assume control over that large class of obligations called 

1 Odd Fellows' Saving Bank's Ap- U. S. 94r-110, where it was held that 
peal, 123 Pa. 356; Lafean v. Caramel when a postmaster refused to deliver 
Co,, 271 Pa. 283. mail matter to the complainant, the 

2 Chicago, Milwaukee & St. Paul latter was entitled to an injunction 
Ry. Co. V. Third Nat. Bank, 134 to prohibit the further withholding of 
U. S. 276. See, also, North British his letters, on the ground that such 
and Mercantile Ins. Co. v. Lathrqp, relief was the only adequate remedy 
25 U. S. App. 443; Newlove v. Pen- for such an injury. 

nock, 123 Mich. 260. See, however, * Rees v. City of Watertown, 19 

Ahl's Appeal, 129' Pa. 63; Mack v. Wall. 121. See, also, Stewart v. Ste- 

McIntpBh, 181 111. 633, and Denny wart, 207 Pa. -59; and Card v. Card, 

V. McCown, 34 Oreg. 47. 108 Cal. 19; Hoopes v. Ebel, 37 ?a. 

' See American School of Mag- Suj). 467; Harrigan v. Gilchrist, 

netio Healing v. McAnnulty. 187 121' Wis. 127. 



CH. Ifl.] 



MAXIMS IN EQUITY. 



59 



imperfect obligations, resting upon conscience and moral 
duty only, unconnected with legal obligations." * 

On the other hand, equity will not dismiss the bill simply 
because the motives of the plaintiff may be contrary to the 
rules of morality or the doctrines of Christianity. If the 
law concerned itself with the motives of parties, new com- 
plications would be introduced into. suits which might se- 
riously obscure their real merits. If ar debt secured by 
mortgage is justly due, it is no defence to a foreclosure 
that the mortgagee was animated by hostility or other bad 
motives.^ 
t- In the second plac e equity will not afford relief where 
' there is adequate and complete remedy at law. In such a 
case there is no groimd for interference by equity. The 
jurisdiction in equity attaches unless the legal remedy 
• both in respect to the final relief and the mode of obtaining 
it, is as efficient as the remedy which equity would confer 
under /the same circumstances.* 



' " I do not understand that eqflity, 
even under the benign administra- 
tion of the longest-footed chancellor, 
undertakes to enforce moral obliga- 
tions- in the length and breadth of 
the Golden Rule, and it is important 
that we should heep its boundaries 
carefully marked." Per Mitchell, J., 
in Hoffner's Est., 161 Pa. 344. 

' South Dakota 0. North Carolina, 
192 U. S. 311. 

' Greene v. Louisville R. R. Go., 
244 U. S. 619; Singer Co. v. Benedict, 
229 U. S. 481; Javierre v. Central 
Altagracia, 217 U. S. 508; Boise 
Water Co. v. Boise City, 213 U. S. 
281; So. Pac. Ry. Co. v. United 
States, 200 U. S. 341; WaUa WaUa 
V. WaUa WaUa W^ter Co., 172 U. S. 
12; Kilbourn v. Sunderland, 130 
U^ S. 614; Hews v. Burrage, 266 
Fed. 349; Wofford Co. v. Smith, 263 
Fed. 404; DaU Co. ». Willys-Overland, 
263 Fed. 181; Fredenberg v. Whitney, 
240 Fed. 822; Preston v. Sturgis 
Co., 183 Fed. 10; Minge v. Clark, 
196 Ala. 617; Hogan v. Scott, 186 



Ala. 310; United States v. North- 
west Trading Co., 1 Alaska, 5, 
Bisbee v. Arizona Ins. Agency, 14 
Ariz. 313; Chapman v. Osceola Dis- ■ 
triot, 127 Ark. 318; More v. CliurehiU, 
166 Cal. 368; Botsford v. WaUace, 
72 Conn. 195; Betts v. So. Ga. Ry. 
Co., 69 Fla. 46; Rentz v. Granger, 
64 Fla. 446; Koockogey v. Flewellen, 
24 Ga. 608; Downey v. Silva, 20 
Haw. 361; School District ». Rice, 11 
Idaho, 99; Cosgrove v. Chicago, 235 
111. 358; Day v. Park Co., 174 lU. 
App. 477; Kyle v. Frost, 29 Ind. 382; 
Keokuk Ry. v. DonneU, 771a. 221; 
Howe Machine Co. ». Miner, 28 
Kan. 441; Louisville R. R. v. Smith, 
117 Ky. 364; Lynn Shoe Co. v. Lunn, 
108 Me. 198; Frue v. Loring, 120 
Mass. 507; Becker v. Lipps, 131 
Md. 301; Clayton w.' Carey, 4 Md.- 
26; Flint v. Le Heup, 199 Mich. 41; 
Schumaker v. Commissioners, 97 
Minn. 74; ShotweU v.- Lawson, 30 
Miss. 27; Johnson v. Railroad, 227 
Mo. '423; Thorn Co. v. Bank, 168 Mo. 
272; Western Union Tel., Co. v. 



60 MAXIMS IN EQUITY. [CH. HI, 

1 Thus a bill in equity will not lie simply to recover posses- 
sion of land, becadse for this there is a complete remedy at 
common law by ejectment. Such' bills have been termed 
"Ejectment Bills," and are demurrable.^ Again: AVhile 
equity, as will be hereafter seen, may in certain cases re- 
strain acts of destructive trespass by injunction, yet this is 
done only in those cases in which redress by the common- 
law action of trespass would be inadequate, and conse- 
quently equity will decline to interfere whenever the damages 
given in the common-law action woiild furnish an effectual 
redress.^ 

To give still another illustration : Where personal property 
is wrongfully converted, and a right to damages consequently 
accrues to the owner, or where the cause of action is for the 
payment of a sum of money merely, there is no reason why a 
court of equity should be resorted to.^ An action at law in 
such .a case is the appropriate remedy, for it affords com- 
plete redress for the wrong complained of:^ 

Therefore on the like principle, where a bill was filed by a 
purchaser of certain merchandise to enjoin a seller who re- 
Douglas, 76 Neb. 666; Gregg v. Lancaster v. Kathleen Oil Co., 241 
Thurber, 69 N. H. 480; Thropp v. U. S. 555; Sanders v. Devereux, 19 
Public Service Co., 84 N. J. Eq. U. S. App. 630; Palmer v. Sinnickson, 
144; Ostrander v. Weber, 114 N. Y. 59 N. J. Eq. 530; Cole v. Mette, 
95; Streng v. Buck Run Coal Co., 65 Ark. 503; Hecht v. Colquhouh, 57 
241 Pa. 660; Gray w. Citizens Gas Md. 563; Odle v. Odle, 73 Mo. 289; 
Co., 206 Pa. 303,; Gallagher v. FsLy- Whitney v. Stevens, 97 111.' 487; 
ette R. R. Co., 38 Pa. 102; Patterson TiUmes v: Marsh, 67 Pa. 510; Wil- 
V. Lane, 35 Pa. 275; McCabe v. liams v. Fowler, 201 Pa. 336; Jones 
Colleton, 106 S. C. 25; Hoffman v. v. Fox, 20 W. Va. 370; Condict v. 
Tooele City, 42 Utah, 353; Boutwells Erie R. R. Co., 80 N. J.^Eq. 519; 
V. Realty Co., 89 Vt. 80; Starke v. Whitney Co. v. Smith, 63 Or. 187; 
Storm, 115 Va. 651; Nuzum v. Llewellyn v. Coal Co., 224 Pa. 66. 
Nuzum, 77 W. Va. 202; Nease v. " Clark's Appeal, 62 Pa. 450; 

Ins. Co., 32 W. Va. 283; Royal In- Grubb's Appeal, 90 Pa. 228; Kistler 
demnity Co. v. Sangor, 166 Wis. v. Weaver, 135 N, C. 388. 
148. ' 'Raton Water Works Co. v. 

> Renison v. Ashley, 2 Ves. Jr. Raton, 174 U. S. 360. 
461; Loker v. Rolle, 3 Ves. Jr. 4; * Lacombe ti. Forstall's Sons, 123 

Whitehead tf.Shattuck, 138 U.S. 150; U, S. 570. 



CH. III.] MAXIMS IN EQUITY. 61 

fused to deliver the subject of the sale from selling to anyone 
else, the bill should have been promptly dismissed.^ 

And even if the want of jurisdiction in such cases is not 
raised by the pleadings, the court nevertheless may, and not 
infrequently does, sud sponte, take the objection and dismiss 
thebill.2 

■ This exception to the general maxim applies to the case of 
a defendant as well as to that of a plaintiff, and if an action at 
law on an instrument in writing can be fully defended on the 
ground that it was obtained by fraud,^the defendant cannot 
(as a rule) file a bill for the cancellation and surrender of the 
document.' 

Equity, it may be here observed, has no jurisdiction to try 
the title to a public ofl&ce. This is done under a writ of quo 
warranto. Therefore a court of chancery will not ordinarily 
entertain a bill to enjoin a -defendant from performing the 
duties of a public office on the ground that he has no title to 
the office. The remedy is at law.* There maty, however, be 
exceptional cases.^ 

When the jurisdiction of courts of chancery depends upon 

^ Mundy v. Brooks, 204 Pa. 232. lein v-. Saginaw Circuit Judge, -J;28 

" Keokuk & N. W. Ry. v. Donnell, Mich. 440; Blain v. Cliippewa, 145 
77 la. 225; Humphreys "w. Atlantic Mich. 59; Marshall v. State Re- 
Milling Co., 98 Mo. 551; Southern formatory, 201 111. 1; Gilroy's Ap- 
Pacific R. R. Co. v. United States, peal, 100 Pa. 5; Brower v. Kantner, 
200 U. S. 341; Hipp v. Babin, 19 190 Pa. 185; State v. Aloe, 152 Mo. 
Howard, 271; Small v. Lutz, 34 Ore. 466; Dist. Twp. of Grove v. Myles, 
131; Singer Go. v. Benedict, 229 109 la. 541; Ward v. Sweeney, 106 
U. S. 481; South Penn. Oil Co. v. Wis. 44; Tupper v. Dart, 104 Ga. 
MiUer, 175 Fed. 736. Contra, Os- 179; Landes v. Walls, 160 Irid. 216; 
trander v. Web^r, 114 N. Y. 102. Little v. City of Bessemer, 188 Ala. 

' Cable V. U. S. Life Ins. Co., 191 127; School District v. Cowgill, 

U.S. 309; Des Moines Life Ins. Co. w. 76 Neb. 317; People v. Howe, 177 

Seifert, 210 111. 157. See post, sec- N. Y. 499; Howe v. Dunlap, 12 Okla. 

tions 472, 473, 474, Part III., Chap. 467; Lawson .v. Hays, 39 Col. 250. 

III. Griesa v. Mutual Life Ins. Co., See Louisville R. R. Co. v. Bosworth, 

169 Fed. 513; Niagara Fire Ins. Co. 209 Fed. 385; Price v. CoUins, 122 

V. Adams, 198 Fed. 822. . . Md. 109. 

* Att. Gen. v. Clarendon, 17 Ves. Jr. ' Stenglein v. Saginaw Cir. Judge, 

491; In re Sawyer, 124 U. S. 213; 128 Mich. 440; Poyntz v. Shaokel- 

Tappan v. Gray, 7 HiU, 259; Coch- ford, 107 Ky. 546; Marshall v. State 

ran v. McCleary, 22 la. 75; Steng- Reformatory, 201 111. 9. 



62 



MAXIMS IN BQTTITY. 



[CH. III. 



precise statutory regulations, the operations of this maxim 
are, of course, controlled by the language of the particular 
legislative provision by which it is regulated.^ And so where 
a case, formerly cognizable in chancery alone, is, by statute, , 
brought within the scope of common-law jurisdiction, the 
equitable jurisdiction may sometimes be ousted. Thus, it 
has been decided in some states that the power conferred by 
statute of calling the opposite party as a witness in common- 
law actions has taken away the jurisdiction by bills for dis- 
covery in chancery.^ But under the statutes in several other 
states and in England a different rule prevails.* 

Nor does the mere fact that in the particular case before 
the court, the legal remedy has failed, justify the interposi- 
tion of a court of equity. Thu3, in Rees v. City of Water- 
town,^ a bill was filed by a holder of certain municipal bonds, 
setting forth that he had obtained judgment thereon, and 
that he had failed to obtain satisfaction by process of man- 
damus. The bill prayed that the taxable property of the 
citizens, which was (it alleged) a trust-fund for the payment 



' See Boyce v. Grundy, 3 Peters, 
215; Oelrichs v. Spain, 15 Wall. 228 
Grand Chute v. Winegar, Id. 375 
Woodman v. Freeman, 25 M6. 531 
Clark V. Robinson, 58 Me. 137; Jones 
V. Newhall, J15 Mass. 244;. Sipe v. 
Tarentum Borough, 263 Pa. 341; 
and ante, pp. 24 and 25 and notes^ 

2 Hall V. Joiner, 1 S. C. (N. S.) 
186; Riopelle v. Doellner, 26 Mich. 
.102; McGough v. Ins. Bank, 2 Ga. 
151; Woodward v. Woodward, 148 
Mo. 241. 

^ ' Shotwell's Adm'rx v. Smith, 20 
N. J. Eq. 79; Miller v. U. S. Cas- 
ualty Co., 61 N. J. Eq. 110; Cannon 
V. McNab, 48 Ala. 99; Millsapps v. 
Pfeiffer, 44 Miss. 805; Lovell v. Gal- 
loway, 17 Beav. 1; British Empire 
Shipping Co. v. Somea, 3 K. & J. 
433; Snell's Eq. 357; and see post, 
1 175. See, also, upon the general 
subject as to how far equity will re- 



tain its jurisdiction, notwithstanding 
similar jurisdiction has been con- 
ferred upon common-law courts: 
Waldron v. Simmons, 28 Ala. 629; 
Bright V. Newland, 36 Tenn. 440; 
King V. Payap, 18 Ark. 583; People 
V. HoughtaUng, 7 Cal. 348; Grain 
V. Barnes, 1 Md. Ch. 151; Payne 
V. Bullard, 23 Miss. 88; Clark v. 
Henry, 9 Mo. 339; Wells v. Pierce, 
27 N. H. 503; Irick v. Black, 17 N. J. 
Eq. 189; Force v. The City of Eliz- 
abeth, 27 N. J. Eq. 408; Oliveira v. 
University, 62 N. C. 69; Kabler v. 
Spencer, 114 Va. 593. 

On the other hand, where equity 
powers, which were not previously 
enjoyed, are conferred upon courts 
by statute, such gift does not affect 
the exercise of relief under common- 
law forms. Aycinena v. Peries, 6 
W. & S. 257; Biddle v. Moore, 3 Pa. 
161; Church v. Ruland, 64 Pa. 441. 

* 19 Wp,ll. 121,- 



CH. III.] MAXIMS IN EQUITY. 63 

of the city's debts, might _be subject by the decree to the 
payment of the complainant's judgments, and that the 
marshal of the district might be empowered to seize and sell 
so mucb. of it as might be necessary for that purpose. But 
the court refused the relief on the" ground that the proper 
remedy was by mandamus, and that the mere circumstance 
that that remedy had failed, in the particular case, did not 
give a court of chancery jurisdiction. The same ruling was 
made in Heine v. The Levee Commissioners,^ where it was 
said that the total failure of ordinary remedies did not confer 
upon the court of chancery an unlimited power to give 
relief, and. that neither such failure nor the hardship of the 
case allows a court of equity to administer abstract justice 
at the expense of well-settled principles.* 

But if a court of equity has originally assumed jurisdiction 
over a particular class of cases, it will not, as a general rule, 
be ousted from that jurisdiction simply because, in the prog- 
ress of common-law improvement, redress comes to be sub- 
sequently attainable at law.' 

Moreover, the remedy at law must b^ plain, adequate, and 
complete, otherwise the jurisdiction of a court of equity will 
attach.* Thus in Watson v. Sutherland,* where goods in the 

1 19 Wall. 658. * Jones v. Newhall, 115 Mass. 244; 

'See, also, Carlton ». Salem, 103 Story's Eq., §33. See, also, Thomp- 

Mass. 143; Heilman v. The Union- son «■ Allen County, 116 U. S. 560; 

Canal Co., 37 Pa. 100; Dowell v. Madison Av. Church «. Madison Av. 

MitcheU, 105 U. S. 432; Preston v. Church, 26 How. Pr. 72; City of 

Sturgis Co., 183 Fed. 1. Hartford v. Chipman, 21 Conn. 488V 

' Kemp V. Pryor, 7 Ves. Jr. 249; Scott's Adm'rx v. Scott, 33 Ga. 102; 
Bromley v. Holland, 7 Ves. Jr. 19; Skiltons. Webster, Bright. ^3; Kirk- 
Wesley Church V. Moore, 10 Pa. 279, Patrick v. McDonald, 11 Pa. 392; 
280; Sweeney v. Williams, 36 N. , J. Bank of U. S. v. Biddle, 2 Pars. Eq. 
Bq. 627; Schroeder v. Loeber, 75 Cases (Pa.), 31; Johnston v. Price, 
■ Md. 196; Maloney v. Terry, 70 172 Pa. 427; Sweeney v. Williams, 36 
Ark. 190 ; Herring v. Wilton, 106 N. J. Eq. 627; Hay v. Alexandria 
Va. 171; Evans v. Willute, 167 Ala. R- R- Co-, 1 Hugh, 168; Cadigan 
587. V. Brown, 120 Mass. 493; Richard- 

' 5 Wall. 74. Followed in North v. IngersoU, 14 S. Dak. 7. See, also, 

V. Peters, 138 U. S. 281; Flaccus v. Hall». Nester, 122 Mich. 141; Street 

Smith, 199 Pa. 128; 136; Phelan v. Grading District v. Hagadorn, 186 

Smith, 22 Wash. 397; and Halley Fed. 453, 



64 



MAXIMS IN EQUITY. 



[CH. III. 



possession of B. were levied on as the property of A., and the 
result of the levy would have been to ruin the credit and 
break up the business of B., the court enjoined the execution- 
creditor, on the ground that the damages which could have 
been recovered in a common-law action by B. would have 
been entirely inadequate to compensate him for the loss he 
would sustain. 

\ In the third p lace, equity is concerned only with questions 
^ which affect property, and it exercises no jurisdiction in mat- 
ters of wrongs to the person or to political rights, or because 
the act complained of is merely criminal or illegal.^ 



son V. Brooks, 52 Miss. 118; Court- 
wright vr. Bumes, 3 McCr. C. C. 60; 
Clark V. AUen, 87 Ala. 198; Wal- 
ker' ». Daly, 80 Wis. 222; Pinkum 
V. Eau Claire, 81 Wis. 301; Schneider 
V. City of Rochester, 160 Nr Y. 165 
Lowman v. Crawford, 99 Va. 688 
Board v. Spangler, 159 Ind. 575 
Farwell v. Colonial Trust Co., 147 
Fed. 480; Northern Pae. Ry. Co. v. 
Van Dusen, 245 Fed. 457; Bitter- 
man V. Louisville & Nashville R. R., 
207 U. S. 205; Rentz v. Granger, 64 
Fla. 445. 

' World's Columbian Expos'n Case, 
18 U. S. App. 159; Green v. Mills, 
25 U. S. App. 394; Boston Diatite Co. 
V. Florence Manufg. Co., 114 Mass. 
70; Fletcher v. Tuttle, 151 111. 41; In 
re Sawyer, 124 U. S. 210. Equitable 
jurisdiction exists to restrain crim- 
inal prosecutions under unconstitu- 
tional enactments when the pre- 
vention of such prosecutions is es- 
sential to the safeguarding of rights 
of property. Truax v. Aaich, 239 
U. S. 37; Davis, etc., Co. », Los 
Angeles, 189 U. S. 217; approved in 
Dobbins 'v. Los Angeles, 195 U. S. 
241; State of Mississippi v. Johnson, 
71 U. S. 475; Kirwan v. Murphy, 
189 U. S. 54; Giles v. Harris, 189 



U. S. 487; Ashinsky 'v. Levenson, 
256 Pa. 19; Sparhawk v. Union Pass. 
Ry. Cp., 54 iPa. 401; Osbom v. 
Charlevoix Circuit Judge, 114 Mich. 
656; Downes v. Bennett, 63 Kan. 
653; Riverside Co. v. San Bernardino 
County, 134 Cal. 517; Hatfield v. 
DeLong, 156 Ind. 207; post, §§ 412, 
424, 465, and note to the last-named 
section; Brown v. Mayor, 140 Ala. 
590; City of Chicago v. Chicago 
City Ry. Co., 222 DI. 560; Shoe- 
maker V. City, 129 la. 244; Winnett 
V. Adams, 71 Neb. 817; State v. 
Dunbar, 48 Or. 109; Littleton w; 
Burgess, 14 Wyo. 173. 

The use of voting machines at elec- 
tions relates to the exercise of a purely 
political right with which courts of 
equity have no power to interfere by 
injunction. U. S. Voting Machine 
Co. V. Hobson, 132 Iowa, 38; People 
V. Prouty, 262 lU. 218; Pa. R. R. Co. 
V. Ewiog, 241 Pa. 581; Angelus v. 
Sullivan, 246 Fed. 64; Bonifici v. 
Thompson, 252 Fed. 878; Jacob 
Hoffman Brewing Co. v. McEUegott, 
269 Fed. 328 and 527; McGee v. 
San Francisco, 235 Fed. 75; Cleve- 
land Iron Co. V. Kenney, 262 Fed. 
984; International News Service v. 
Associated Press, 248 U. S. 236. 



CH. III.] MAXIMS IX EQUITY. fl6 

I In the fo ufth pla ce, equity will not give a remedy in direct 
contravention of a positive rule of law.^ The doctrine of 
equity upon this subject is thus illustrated by Mr. Justice 
Blackstone: "Hard," he says, "was the case of bond-creditors 
whose debtor devised away his real estate; rigorous and 
unjust the rule which put the devisee in a better condition 
than the heir ; yet a court of equity had no power to interpose. 
Hard is the common-law still subsisting, that land devised, 
or descending to the heir, should not be liable to simple con- 
tract debts of the ancestor 'or devisor, although the money 
was laid out in purchasing the very land; and that the father 
shall never immediately succeed as heir to the real estate of 
the son; but a com-t of equity can give no relief; though in 
both these instances the artificial reason of the law, arising 
from feodal principle has long ago entirely ceased." * 

This rule is recognized to its full extent in the Equity juris- 
prudence of the United States. If a transaction is condenined 
under the force of legal rules, it caimot receive a more favpr- 
able consideration in a court of equity on account of any hard- 
ship to particular parties; and legal rights acquired by the 
prosecution of a lawful demand in a lawful way will not be 
disturbed by a chancellor.' 

It may be added here, that where the amount in con- 
troversy is'very trivial, equity will not take cognizance of the 
cause.* 

38. n. Equity follows the Law. 

The second maxim which will be noticed is that equity fol- 
lows the law. The meaning of this maxim is that equity 

'See Magniac v. Thomgon, 16 also, Cowan v. Jonea, 27 Ala. 317; 

How. 281; Hedges v. Dixon Co., 160 Chapman v. B. & T. Pub. Co., 128 

U. S. 182-192. MaM. 478; and Ocean City R. R. Co. 

« 3 Black. Com. 430. ». Bray, 65 N. J. Eq. I'd, where the 

' Burke v. Murphy, 27 Miss. 167; court refused to enjoin the construo- 

McCourtney v. Sloan, 16 Mo. 95; tion of a railroad at the suit af a 

State V. McBride, 76 Ala. 61; Nelson landowner where the land taken was 

». Hamner, 84 Va. 909; Frickev. Safe worth only five dollars! Kelaher v. 

Dep. Co., 183 Fa. 276. English, 62 N. J. Eq. 674; RobertKn 

* Moore v. Lyttle, 4 J. G. R. 183; v. Lewie, 77 Conn. 34S; Qiragoiian •■ 

McNew V. Toby, 6 Humph. 27. See, Chutjian, 194 Maaa. 604. 

5 



, 66 MAXIMS IN EQUITY. [CH. III. 

applies to equitable titles and interests those rules of law by 
which legal titles and interest are regulated, provided this 
can be done in a manner not inconsistent with the equitable 
titles and interests^ themselves.^ Thus equitable estates are 
subject to the same laws of inheritance as legal estates, and 
their devolution is the same. And so, as at common law, the 
husband was entitled absolutely, to his wife's chattels in pos- 
session, he is in like manner considered entitled to chattels of 
which she is the equitable owner. But where the property 
is settled to the separate use of a feme covert, equity will not 
suffer the title of the husband to be asserted,- for to do so 
would be to defeat the title which has been created in equity 
for the benefit of the wife. In the case of executory trusts, 
also, equity will sometimes refuse to apply the strict rules by 
which legal estates are controlled; but this is because such 
trusts are in an inchoate condition, and the exact quality and 
duration of the estate are not, in them, strictly defined. 

Equity also may be said to follow the law when rights in 
equity are considered barred by lapse of time in analogy to 
the statutes of limitatio!ns.^ 

I 39. III. Vigilantibus non donnientibus .ffiquitas subveniunt. 

Another maxim is vigilantibus non dermientibus cequitas 
subveniunt, the meaning of which is suflficient obvious.<fj>It is 
designed to provoke diligence, to punish laches, and to dis- 
courage the assertion of stale claims.' By virtue of this 

> A somewhat different version -of qualification of the first maxim, 

this maxim was given in Magniac v. Ante, p. 65. 

Thomson, 15 How. 299, namely, that i* See Lansing v. Starr, 2 J. C. R. 

"wherever the rights or the situation 150; Boone^ County v. Burlington & 

of parties are clearly defined and es- Missouri River R. R., 139 U. S. 693; 

tablished by law, equity has no power Bickel's Appeal, 86 Pa; 204; Taylor 

to change or unsettle those rights or v. Slater, 21 R. I. 104; Redford v. 

that situation." And see Hedges v. Clarke, 100 Va. 115; and post, § 203. 

Dixon Co., 150 U. S. 182-192. See ' Lacon v. Briggs, 3 Atk. 105. 

Article in 66 Cent. Law Jr. 177; See Ellison ». Moffatt, 1 Johns. Ch. 

In re Federal Biscuit Co., 214 Fed. 46; Price's Appeal, 54 Pa. 472; Ger- 
225; Rambo v. Bank, 88 Kan. 257; , mantown Pass. Railway Co. v. 

Hayes v. Schall, 229 Mo. 114; Scott Fitler, 60 Pa. 133; O'Reilly v. Read- 

V. Brewing Co., 256 Pa. 158. But ing Trust Co., 262 Par 337; Water- 

this proposition might, it seems, man v. Sprague Mfg. Co., 55 Conn, 

more properly fall under the fourth 554; Truesdell v. Lehman, 47 N. J. 



CH, III.] 



MAXIMS IN EQUITY. 



67 



maxim such claims are rejected in equity, independently of 
any statute of limitations.^ In many cases equitable relief 
depends upon the discretion of the chancellor, and the laches 
of the complainant is often one of the most important of the 
elements which are taken into consideration when that dis- 
cretion is exercised.^ 

Coiirts of equity sometimes consider themselves bound by 
the statutes of limitation; in other cases they act by analogy 
only.' But lapse of time and the staleness of a claim may 
constitute a defence in courts of equity'even where no statute 
of limitation governs the case. This defence is' peculiar to 
chancery courts, which in such cases act upon their own in- 
herent doctrine of discouraging, for the peace of society, an- 
tiquated demands, and refuse to interfere where there has 
been gross laches in prosecuting the claim, or long acquies- 
cence in the assertion of adverse rights.* 



Eq. 218; Vargo v. Vajo, 76 N. J. Eq. 
161; Andrews v. Tuttle, 191 Mass. 
461; Kellogg v. Moore, 271 Mo. 189; 
Wolf V. Great Falls Water Co., 15 
Montana, 49;- Rajonond v. Flavel, 
27 Oregon, 219; Hall ». Nash, 33 
Colo. 508; Smiok v. Beswick, 113 
Ky. 439; Stevenson v. Boyd, 153 
Cal. 630; Good t>. Queens Run Fire 
Brick Co., 224 Pa. 496; Inge v. 
Inge, 120 Va. 329. 

1 Smith's Eq. 19; Hill on Trustees, 
169, note; Smith v. Turley, 32 W. Va. 
14; Marshall v. HiH, 246 Mo. 1; 
Forster v. Brown Co., 185 111. App. 
528; Patterson v. Hewitt, 195 II. S. 
319; Pond Creek Coal Co. v. Hatfield, 
239 Fed. 627; Humphreys r. Walsh, 
248 Fed. 418. 

2 See Ruokman v. Cory, 129 U. S. 
387; Hovey v. Bradbury, 112 Cal. 
620, and Lamberton v. Youmans, 84 
Minn. 109, for cases in which it was 
held that the maxim ought riot to be 
applied. Youse v. McCarthy, 51 
Pa. Sup. 306. 

' See and consider Fullwood v. 
Fullwood, 9 Ch. Div. 176; Richard- 



son V. Gregory, 126 111. 166; Williams 
V. Neely, 134 Fed. 1; Finnell v. Fin- 
nell, 156 Cal. 589; Summers v. 
Abernathy, 234 Mo. 156. 

* Badger v. Badger, 2 Wall. 94; 
Speidel v. Henrici, 120 U. S. 387; 
Richards v. Mackall, 124 U. S. 183;- 
Abraham v. Ordway, 158 U. S. 420; 
Jewell V. Trilby Mines Co., 229 Fed. 
98; Naylor v. Foreman Lumber Co., 
230 Fed. 671; Humphreys v. Walsh, 
248 Fed. 4^18; Gibson v. Herriott, 55 
Ark. 85; Rabe v. Dunlap, 51 N. J. Eq. 
40;Wagn-fer«.Sanders,62 8. C. 73. It 
has been said that the rule of the bar 
of the statutory period in equity 
seeips to be that an equitable remedy 
to enforce a legat'vested right or in- 
terest, as distinguished from a mere 
equitable right, is not affected by 
laches merely, short of the common- 
law bar. In re Maddever, 27 Ch. D. 
527-532; Clarke v. Hart, 6 H. L. 
Gas. 646-654; Campbell v. Seaman, 
63 N. Y, 584-5. See, also, Agens v. 
Agens, 50 N. J. Eq. 566; Colton v. 
Depew, 60 Ni J. Eq. 454; Bume v. 
Partridge, 61 N. J. Eq. 434; Gordon 



68 



MAXIMS IN EQUITY. 



[cH. ni. 



"A court of equity," said Lord Camden, "has always re- 
fused its aid to stale demands where the party slept upon his 
right and acquiesced for a great length of time. Nothing can 
call forth this court into activity but conscience, good faith, 
and reasonable diligence; where these are wanting the. court 
is passive and does nothing. Laches and neglect are always 
discountenanced.; and therefore from the beginning of this 
jurisdiction there was always a limitation to suits in this 
court." ^ 

But this maxim must hot be understood as operating to de- 
prive a plaintiff from obtaining redress in equity by reason of 
delay, when the wrong-doing has been secret and has been 
fraudulently concealed. In such a case the nfe.xim has no ap- 
plicatipp.^ 

It may be added, that as against the Government laches 
cannot be set up as a defence in equity any more than the bar 
of the statute can at law; ' and, also, that laches may not be 
imputed so as to deprive a party of his equitable rights, when 
his delay has caused no harm.^ 



V. Johnson, 186 III. 18;- St. Paul, 
Minn. & M. Ry. Co. v. Eckel, 82 
Minn.- 278; McMillan k McMillan, 
184 111. 230; Old Times Co. v. Casey, 
104 Ky. 616; Stevenson v. Boyd, 
153 Cal. 630; Scruggs , v. Decatur 
Land Co., 86 M§.. 173; Kline v. 
Vogel, 90 Mo. 239; Calhoun v. Mil- 
lard, 121 N. Y. 69; Shelton v. Hor- 
rell, 232 Mo. 358; Bergen v. John- 
son, 21 Ida. 619; Keller v. Harrison, 
151 Iowa, 320; Dusenbery v. Bidwell, 
86 Kan. 666; Retsch v. Renehan, 
16 N. Mex. 541; State v. Warner 
Co., 56 Or. 299; Stephens v. Dubois, 
31 R. I. 147; Petticrew v. Green- 
shields, 61 Wash. 620; Westerman 
V. Dinsmore, 68 W. Va. 600; General 
Electric Co. v. Yost Co., 208 Fed. 
723. 

' Smith V. Clay, 3 Bro. Ch. R. 639. 
See Rabe v. Dunlap, 51 N. J. Eq. 46, 
where Lord Camden. is quoted; New 
York City v. Pine, 185 U. S. 95; 
Tozier v. Brown, 202 Pa. 364; Wiggin 
V. Machine Co., 68 N. H. 14, and 
Covington v. Griffin's Admr., 98 Va. 

V 



124. In this last case it was justly 
remarked that equity requires dili- 
gence in the prosecution as well as 
the institution of suits. See, also, 
Hammond v. Hopkins, 143 U. S. 250; 
Hemmick v. Standard Oil Co., 91 
Fed. 332; Groome l». Belt, 171 Pa. 74; 
Smith V. Turley, 32 W. Va. 17; Ry- 
ason V. Dunten, 164 Ind. 85; Dex- 
ter V. MacDonald, 196 Mo. 373. The 
maxim has been applied as against 
purchasers for value, without notjce. 
Logan V. Neill, 128 Pa. 469; Alabama 
Coal Co. V. Gulf Coal Co., 171 Ala. 
544. 

' BuUi Coal Mining Co. v. Osborne 
[1899], A. C. 351; United States v. 
Kendall, 263 Fed. 129. 

' United States v. Dalles Military 
Road Co., 140 U. S. 632; State v. Ry. 
Co., 157 Wis. 73; R. R. Co. v. County, 
110 Va. 95. But- see Bradford v. 
New York & Pa. Telph. & Tel. Co., 
206 Pa. 582; Bailey's Estate, 241 
Pa. 230. 

« White 0. Patterson, 189 Pa. 429; 



CH. III.] MAXIMS IN EQUITY. 09 

40. IV. Between equal Equities the law will prevail.^ 

.If two persons have each an equally good equitable right, 
but one of them has the legal title to the subject of the dis- 
pute, equity will not interfere, but leave them to the courts 
of law, when, of course, the holder of the legal title will pre- 
vail. Thus, if a purchaser for a valuable consideration, with- 
out notice of a prior equitable right, obtains the legal estate at 
the time of his purchase, he will be entitled to priority in 
equity as well as at law.^ 

Indeed, the maxim jn question goes further,; for the bona 
fide holder of an equity who has acquired it for value without 
notice of a prior equity may, even after he has received notice 
. of the prior equity, obtain an advantage by getting in any 
outstanding legal title; and of this advantage a court of 
chancery will not ordinarily deprive him.'^ 

A good illustration of the effect which equity gives ta the 
acquisition of the legal title in those cases in which the eq- 
uities are equal, is afforded by Thomdike v. Hunt.* There a 
trustee, under two different settlements, having misappropri- 
ated the funds of one, replaced them by a transfer of funds 
belonging to the other. In a suit instituted by the cestui que 
trust under the fibrst settlement, the trustee transferred the 
money into court, and the fimd was treated as belonging to 
that estate, the legal title consequently resting in the account- 
ant general for the purposes of that trust. The question was 
whether the cestui que trust under the second settlement had 
a right to follow this fund, and it was held that lie had not, 

Ellis V. Southwestern 'Le^■a&. Co., 102 Co. v. North American Co., 255 Fed. 

Wis. 400; Newman v. Newman, 152 947. 

Mo. 398; French o. Woodruff, 25 * Note to Baaset v. Noflworthy, 2 

Colo. 339; Brown t>. Ward, 110 Iowa, Lead. Qas. Eq. 5. See, however, 

123. Central Trust Co. v. West India Imp. 

» Farmers' and Merchants' Bank Co., 169 N. Y. 314; Coffman v. 

V. FarweU, 19 U. S. App. 261-263; Liggett, 107 Va. 418. 

Weiatinghouse v. German Nat. Bank, ' Taylor v. Russell [1891], 1. Ch. 8; 

196 Pa. 249 (certificate of stock); Blackwood e. The London Chartered 

Forman ». Brewer, -62 N. J. Eq. 748; Bank of AustraUa, L. R. 5 P. C. 92, 

Enos V. Stewart, 138 Cal. 112; Snook 111; The Dueber Watch Case Mfg. 

V. Zentmyer, 91 Md. 485; Webb o. Co. v. Doughterty, 62 Ohio, 589. 

Hancher, 127 la. 269; Brickey v. * 3 De G. & Jo. 563. 
linnertz, 241 111. 187; Scullin Steel 



70 MAXIMS IN EQUITY. [CH. IH. 

because the transfer being mthout notice and for value (i. e., 
in discharge of the debt due by the defaulting trustee) the 
cestui que trust under the first settlement had just as strong 
an equity to retain the fund as the cestui que trust under the 
second settlement had to follow it; and it therefore followed 
that the circumstances of the legal title being held by the 
accountant general for the former was enough to create a 
preference in his favor. ^ 

41. V. Eqiiality is Equity. 

Another equitable maxim is that equality is equity. This 
may be illustrated by the manner in which the court acts in 
the case of a power in trust, where the donee of the power 
who has the option of selecting out of a class has failed to ex- 
ercise his discretion." In such a case, if there is more than 
one intended beneficiary, equity will divide the property 
equally among all. - 

So, also, in the case of joint purchasers the leaning of 
courts of equity is against the right of survivorship, and in 
fa,vor of treating the parties as interested in the subject- 
matter of the purchase as tenants in common, in propor- 
tion to the sums respectively contributed by each,' 

42. VI. He who comes into Equity must do so with clean 
hands. 

Thi^ maxim has also been expressed, "he that hath com- 
mitted iniquity shall not have equity." * Thus a party who 

1 Snell's Eq. 18, 19; Note to Basset v. Waukeska Canning Co., 195 Fed. 

V. Nosworthy, 2 Lead. Cas. in Eq. 815. 

11. ' * Francis 5. See Cadman v. Hor- 

» See post, Part I., Chap. II., § 77. ner, 18 Ves. 10; Creath i>. Sims, 5 

' See Lake v. Gibson, 1 Lead. Cas. Howard, 192; Barnes v. Starr, 64 

Eq. 177, and notes. See, also, for a Conn. 136-164; MoCuskert;. Spier, 72 

general recognition of the maxim. Conn. 628; McAllister «. Henderson,^ 

Girard Co. .v. Cooper, 4 U. S. App. 134 Ind. 459; Milhous v. SaUy, 43 S. C. 

631; Leighton t>. Young, 10 U. S. App. 324; Reynoldsw. Boland, 202 Pa. 647- 

319; and Woddrop v. Weed, 154 Pa. ^^^' Manuel v. Bion, 270 Pa. 000; 

307-313; Smith v. Moors, 215 Pa. i°"^,?*' "• Macowsky, 96 Cal. 518; 

421; and in the distribution of an in- f„T"^!-, f^^^'^^^^J f y-"?°-. 



Bolrent corporation's assets, Nichols 



104 Ga.'24, s. c. 728; Shemer t>. 



CH. III.] 



MAXIMS IN EQUITY, 



71 



seeks to set aside a transaction on the ground of fraud must 
himself be free from any participation in the fraud, if he de- 
sires reUef in equity; ^ and, on the same principle, equity will 
not lend its aid to assist a gambling transaction,'' or to enforce 
penalties, or to aid in the harsh assertion of legal rights,' or 
to set aside a conveyance executed to defraud third parties.* 
And the court will sometimes act sitd sponte.^ 
Upon the same principle, when one of several confederates 
to a fraudulent transaction has acquired the result of the 
fraud, equity will not aid the others in obtaining their share 
of the spoils.* 

About the earliest illustration of this doctrine is almost tra- 
ditional in the famous case 'bf The Highwayman. Lord Ken- 



Spear, 92 N. C. .148; Respass v. 
Jones, 102 N. C. 5; Shattuok v. Wat- 
eon, 53 Ark. 147; Booker v. Wingo, 
29 S. C. 116; Barnett v. Bamett, 83 
Va. 504; McDonald v. Buckstaff, 56 
Tfeb. 88; Weidmann Co. v. Water 
Co., 88 N. J. Eq. 397; Insurance Co. 
V. CoaneHy, 104 Tenn. 93; Raasch v, 
Raasch, 100 Wis. 400; Imp. Co._w. 
Tower's Ex., etc., 158 Mo. 282; Wat- 
son V. Roller Skating Rink Co., 177 
HI. 203; Harton v. Little, 188 Ala. 
640; Binkley v. Nolt, 46 Pa. Sup. 531-; 
Gulf Ref. Co. V. Hart, 130 La. 51; 
Houtz V. Hellman, 228 Mo. 655; 
Carmen v. Fox Co., 269 Fed. 928; 
Harms ». Stem, 231 Fed. 645; Max- 
well V. Maxwell, 69 W. Va. 414; 
Schilling v. Quinn, 178 Ind. 447; 
Rudniok v: Murphj^, 213 Mass. 470; 
but see Monahan v. Monahan, 77 
Vt. 133. 

1 See Wheeler ». Sage, 1 Wall. 518; 
Matthews v. Weiler, 57 Ark. 606. 
The maxim wiU not, however, be 
applied where the creditor in a usuri- 
ous contract seeks to collect the debt 
with legal interest only. 

''Albertson 9. Laughlin, 173 Pa. 
529. Or the recovery of money 
paid in such a transaction. Baxter v. 
Deneen, 98 Md. 181. 



' See Lessig v. Langton^ Brightly's 
R. 191; Kahn v, Walton, 46 Ohio, 
213; McClintock v. Loisseau, 31 
W. Va! 870; Bankw. Adrian, 116 N. C. 
537; Chute v. Quihcy, 156 Mass. 189; 
post, § 181, and cases cited; Clinton 
V. Myers, 46 N. Y. 511; Larscheid v. 
KitteU, 142 Wis. 175. 

J* Brown v. Brown, 66 Conn. 493- 
499; see post, Fraud on Creditors, 
§ 248; Creighton v. Roe, 218 111. 619; 
Brutsche v. Bowers, 122 la. 226; 
Massi V. Lavine, 139 Mich. 140. 

^ Pacific Live Stock Co. v. Gentry, 
38 Ore. 275; Bentley v, Tibbets,. 
223 Fed. 247; BeU ». Bliss, 262 Fed. 
135j Wertheimer v. Nyble, 261 Mo. 
675. 

8 Johns V. Norris, 22 N. J. Eq. 102; 
Walker v. Hill's Executors, 22 N. J. 
513. See also Allen v. Berry, 50 Mo. 
90; Musselman v; Kent, 33 Ind. 452; 
Hibemia Society v. Ordway, 38 Cal: 
679; Hunt v- Rowland, 28 Iowa, 349; 
Marcy w..Dunlap, 5 Lans. 365; Gan- 
nett V. Albree, 103 Mass. 372; Leon- 
ard V. Poole, 114 N. Y. 371; McCUn- 
tock V: Loisseau, 31 W. Va. 865; - 
Schermerhom v. De Chambrun'a 
Admr, J6 U. S. App. 212; Central 
Trust Co, V. Respass, 112 Ky, 606; 
Nat. Bank v. AUy, 260 Fed. 383. 



72 MAXIMS IN EQUITY. [CH. Ul. 

yon once said, by way of illustration, that he would not sit 
to take an account between two robbers on Hounslow Heath, 
and it has been questioned whether the legend in regard to 
the highwayman did not rise from that saying. It seems, 
however, that the case was a real one. The highwayman did 
file a bill in equity for an accounting against his partner; but 
the bill (it is needless to say) was promptly dismissed; and, 
moreover, the plaintiff's soHcitors were 'summarily dealt 
with by the court as for a contempt in bringing such a case 
before it.^ 

Of course, this maxim only applies, to the particular trans- 
action under consideration, for the court will not go outside 
of the (Case for the purpose of examining the conduct of the 
complainant in other matters, or questioning his general 
character for fair dealing.^ Nor is it every prosecution of an 
unfounded claim that will bar a man from coming into a court 
of equity; there must be wilful misconduct in regard to the 
matter in litigation.'' , 

It has been held in some cases that equity will not necessa- 
rily refuse its aid simply because the fund or other subject- 
matter in respect of which the l-elief is asked may have been 
originally created by an illegal transaction. Instances of 
this will be found in Sharp v. Taylor,^ Brooks v, Martin,^ and 
other cases, English and American, cited in the note.* 

But the doctrine in Sharpe v. Taylor and kindred cases is 

> McMuUen «. Hoffman, 174 U. S. ' Snell's Prin. Eq. 42; Lewis and 

639, 654, citing 1 Lindley on Part- Nelson's Appeal, 67 Pa. 166; Meyer 

nership (5th ed.), 94 note n., 9 Law v. Yesser, 32 Ind. 294; Talbot v. 

Quarterly Review (London), pp. 105- Order of Owls, 220 Fed. 662; Foster t>. 

197; Lindley (8th ed.), 113 note q. Winchester, 92 Ala. 497; Miller v. 

' Cited in City of Chicago v. Stock Enterprise Co., 142 Cal. 213; Bradley 

Yards Co., 164 lU. 234-238, and in Co, t». Bradley, 165 Cal. 242. 

Pitzele V. Cohn, 217 III. 30; Kinner * 2 PhU. Ch. 801. 

V. Ry. Co., 69 Ohio St. 339; Camors ^ 69 U. S. 70, 81. 

Co. i>. McConnell, 140 Fed. 412; ' Sykes v. Beadon, 11 Ch. D. 170; 

Dempster v. Baxmyer, 231 Pa. 28; Fanner v. Russell, 1 Bos. & Pul. 296; 

Chute «i. Chemical Co., 185 Fed. McBlair v. Gibbes, 58 U, S. 237; 

118; Englander v. Apfelbaum, 56 The Chas. E. Wiswall, 86 Fed. 671; 

Pa. Sup. 162; Lurie v. Pinanski, 215 Hardy v. Jones, 63 Kan. 8; Harcrow 

Mass. 22^; Luebke v. Salzwedel, «■ Gardiner, 69 Ark. 6; Fishblate v. 

167 Wia. 601. " Fishblate, 238 Pa. 450. 



CH. III.] MAXIMS IN EQUITY. 78 

not to be extended. The whole subject was reviewed by 
Mr. Justice Peckham in McMuUen v. Hoffman,* where the 
distinction was thus expressed: "In the case before us the 
cause of action grows directly out of the illegal contract, and 
if the court distributee the profits it enforces the contract 
which is illegal. But where A claims money from B^ although 
due upon an illegal contract, and B acknowledges the obUga- 
tion and waives the defence of illegality and pays the money 
to a third party upon his promise to pay it to A, the third 
party cannot successfully defend an action brought by A to 
recover the money by alleging that the original contract be- 
tween A and B was illegal. This is the principle decided, 
and we think correctly decided, in the cases cited." 

Under, the same maxim, too, fall cases where equity has 
refused its aid to unconscionable demands or defences, and 
has left the parties to their relief at law." 

43. Vn. He who seeks Equity must do Equity. 

The usual illustration of this maxim is" the case of a bor- 
rower of money on usurious interest, who comes into a court 
of equity to ask for reUef by having the transaction set aside. 
Equity will not afford him redress except upon the terms of 
iiis returning the amount actually borrowed with lawful in- 
terest, because it is as equitable that the person who has 
loaned the money should have the amount with lawful in- 
terest returned to him, as that the borrower should be re- 
Ueved from his unjust obligation to pay a usurious rate.' So 

* 

' 174 U. S. 660. See particularly charges of fraud and reckless evi- 

page 660. See also Snell v. Dwight, dence in support thereof. It would 

120 Mass. 9; Dunham v. Presby,, 120 seem that a suitor in chancery miist 

Mass. 285; Gray o. Oxnard Bros., 59 not only come into court with clean 

Hun, 387; Wiggins v. Bisso, 92 Tex. hands, but must keep them so. 

219; Unckles v. Colgate, 148 N. Y. » Fanning ti. Dunham, 5 Johns. Ch. 

534; Woodson v. Hopkins, 85 Miss. 122. See also Sporrer v. Eifler, 48 

171. , Tenn. 633; Long v. County, 252"^Mo. 

^SeePhilada.TrustCo. W.Coal and 158; Mack ti. Hill, 28 Mont. 99; 

Iron Co., 139 Pa. 544. See in this Hubbard v. Tod, 171 U. S. 501; 

connection Brown v. Davis, 23 U. S. Louisiana Corp. v. Oil Co., 256 Fed. 

App. 579-596, where the court dis- 822; American Freehold, etc., Co. v. 

missed the bill because of reckless Jefferson, 69 Miss'. 770; Hanchey v. 



74 



MAXIMS IN EQUITY. 



[CH. in. 



also a mortgagor who files a bill to redeem, must offer to do 
equity by paying the mortgagee his debt, interest, and costs, ^ 
and he cannot insist that the debt is barred by the statute.* 
Another, and a striking illustration of this maxini, is found 
in the rule that when a husband comes into chancery for the 
purpose of getting in his wife's equitable property^ he will 
not be assisted except upon the terms of making a reasonable 
settlement upon his wife.' Again, when a bona fide possessor 
of property improves it in good faith and under an honest 
belief of ownership, equity in some cases may refuse to aid 
the real owner in ousting him, save upon terms of allowance 
for such expenditures.* Still again; when a property owner 
seeks to enjoin the collection of a tax on the ground that the 
amount is excessive, he must .pay to the proper officer the 
amount which he concedes to be properly due.^ Other illus- 
trations of 'the appUcation of this maxim will be found in the 
authorities cited in the note.^ Among these, Willard v. Tay- 



Southem Bldg. Assn., 140 Ala. 246; 
Garlich v. Mutual Assn., 129 111. App. 
4l4; Lewis v. Hickman, 200 Ala. 672. 

' Lanning v. Smith, i Pars. Eq. C. 
16; Lewie v. Hallman, 53 S. C. 18; 
but see Savoie v. Meyers, 40 La. Ann. 
677; Meetz v. Mohr, 141 Cal. 667; 
Rodda V. Needham, 78 Wash. 639. 

2 Oakman v. Walker, 69 Vt. 344. 

' See § 109 et seq. See, on the 
general maxim, Secrest v. McKemia, 
1 Strobh. Eq. 356; Richardson v. 
Linney, 7 B. Mon. 571; Mumford 
e^ Am. Life Ins. Co., 4 Coms. 463; 
Buena Vista Co. v. Tuohy, 107 Cal. 
243. 

'Putnam v. Tyler, 117 Pa. 588; 
Winston v. Bruin,.247 Fed. 948. But 
such an exercise of jurisdiction is on 
the border-line, and should be most 
cautiously used. Hunter v. Coe, 12 
N. D. 505. 

5 People's Nat. Bk. v. Marye, 191 
U. S. 285; Merrill v. Humphrey, 
24 Mich. 170; Meyer v. Wells, 223 
U. S. 298; Louisville R. R. Co. v. 
Bosworth, 209 Fed. 462; Howoott 



V. Smart, 133 La. 694; Bosworth v. 
Packet Co., 178 Ky. 716. 

^ Comstock V. Johnson; 46 N. Y. 
615; Loder v. Allen, 50 N. J. Eq. 631- 
637; Morrison v. Hershire, 32 la. 
271; Board of Montgomery Coimty 
V. Elston, 32 Ind; 27; Dean v. Charl- 
ton, 23 Wis. 590; Creed v. Scruggs,! 
Heisk. 590; Wales v. Coffin, 105 Mass. 
328; Lohman v. Crouch, 19 Gratt. 
331; Carpenter y. Plagg.e, 192 111. 82; 
MiUer v. Miller, 148 Mo. 113; CoUins, 
etc., V. Green, 10 Okla. 244; McClain 
V. Batton, 50 W. Va. 121; Vick v. 
Vick, 126 N. C. 123; Wrightsville 
Hardware Co. v. McElroy, 254 
Pa. 429. See remarks of Ch. J. Waite 
in Fosdick v. Schall, 99 U. S. 253; 
Gibson v. Herriott, 55 Ark. 85; 
Thomas v. Evans, 105 N. Y. 601; 
Green v. The Coast Line R. R. Co., 
97 Ga. 15-22; Charlestown Ry. Co. v. 
Hughes, 105 Ga. 1; Hayes v. South- 
ern, etc., Assn., 124 Ala. 663; Trigg 
V. Jones's Admr., 102 Ky. 44; O'Con- 
nell V. O'Conor, 191 111. 215; Talbot 
V. Hill, 261 Fed. 244. For a case 
where the maxim was not ap- 



CH. in.] MAXIMS IN EQUITY. 75 

loe^ may be particularly referred to. In that case it appeared 
that iii 1854 the plaintiff had leased from the defendant ahotel 
at Washington for a term of ten years, with the option to the 
lessee of purchasing the fee at a fixed price at any time withiii 
the term. At the date of the lease gold and silver coin was 
the only legal tender. Subsequently the legal tender acts 
were passed and, in April, 1864, just prior to the expiratioiv 
of the term, the lessee elected to exercise his option to buy, 
and tendered the price in paper money, which was at that 
time much depreciated. On the refusal of the lessor to accept, 
the. lessee filed a bill to enforce specific performance of the 
contract. It was held that he was entitled to a decree, but 
only on condition that the stipulated sum should be paid in 
coin. 

The maxim is applicable to a defendant as well as to a 
plaintiff; and a party who seeks to avail himself of an equi- 
table defence must stand the test of the doctrine under 
consideration, as well as one who appears as plaintiff in a 
cause. ^ 

44. VIII. Bquity/ looks upon that as done which ought to 
be done.^ 

This is a very important maxim, and one which lies at the 
foundation of many of the great doctrines in equity'.. For 
the purpose of reaching exact justice, equity will frequently 
consider that property has assmned certain forms with which 
it ought, in justice, to be stamped, or that parties have per- 

plied, see Bowdre «. Carter, 64 Miss. ' "When, chancery interposes ,to 

231; Hickman's Est&te, 40 Pa. Sup. compel the performance of an act 

244^ Callanan v. R. R. Co., 199 N. Y. which has beeh covenanted to be 

268. performed, it always treats the sub- 

' 75 U. S. 557. But see McGoon v. jeot as if it had been performed at 

Shirk, 54 111. 408. the time contracted." Reeve's Dom. 

' Tongue v. Nutwell, 31 Md. 302. Relations, tit. Chancery, 446; Jordan 

See^also, fcown v. Lake Superior Iron v. Cooper, 3 S. & R. 585; Bridgeport 

Co., 134 U. S. 530, and the remarks of Electric & Ice Co. v. Header, 30 U. S. 

Brewer.'J., on p. 535; Union Bank v. App. 581-588; Clemmons v. Cox, 116 

Day, 79 Neb. 845; City of Columbus Ala. 507; Cockrell ». Cockrell, 79 

V. Mercantile Trjist Co., 218 U. S. Miss. 569; United States v. Colorado 

662. Anthracite Co., 225 U. 8. 219. -., 



76 MAXIMS IN EQUITT. [CH. III. 

formed certain duties, or carried out the terms of contracts,' 
which they ought, in justice, to fulfil; ^ and will regulate the 
enjoyment and transmission of estates and interests accord- 
ingly. Thus, where a testator has imperatively directed land 
to be sold and turned into money, equity will consider that the 
conversion (as it is termed) has taken place from the instant 
of the testator's death, and the subsequent devolution of the 
property will be governed by the rules which control, not real, 
but personal estate. And so, as it is the duty of a trustee to 
deal with the trust property for the benefit of the cestui que 
trust, a profit made in his own name will be regarded as made 
for the benefit of the trust estate. This maxim will be found 
running through the whole system of equity jurisprudence.* 

46. TK.. Be^iween equal Equities priority of time will pre- 
vail.^ 

This is the rule which is applied to determine the order be- 
tween conflicting equities. If nothing else intervenes to turn 
the scale, the man who is first in time will be first in right. 
The maxim is frequently applied in questions which arise 
under titles acquired through equitable assigimients, and the 
nature of this doctrine and the reason of its appUcation have 
thus been stated by very high authority: "I take it," said 
Lord'Westbury, in Phillips v/ Phillips,^ "to be a clear proposi- 
tion that every conveyance of an equitable interest is an inno- 
cent conveyance, that is to say, the grant of a person entitled 
merely in equity passes only that vhich he is justly entitled 

' See Ross v. Army & Navy Hotel p.Boyd, 229 U. S. 530; Rea v. Canal 

Co., 34 Ch. D. 43; In re Queensland Co., 245 Pa. 589; Cooper v. Jewett, 

Land & Coal Co., Davis v. Martin, 233 Fed. 626. 

[1894] 3 Ch. 181; Bridgeport Elec. & » Mtts v. Grocery Co., 144 N. C. 

Ice Co. V. Meader, 30 U. S. App. 588; 471. 

Bush V. Boutelle, 156 Mass. 167; » Bennett w. Harper, 36 W. Va. 546. 
Heyer v. SuUivan, 88 N. J. Eq. 165; * Maguire v. Heraty, 163 Pa. 381; 
Payne v. Lumber Co., 9 Okla. 683; Johnson v. Hayward, 74 Neb. 166; 
Rea V. Wilson, 112 Iowa, 517; Nat. Wasaerman v. Metzger, 105 Va. 754; 
Bk. of Deposit v. Rogers, 166 N. Y. Demeter v. Wilcox, 115 Mo. 634. 
380; andMcReaw. McRea, 78Mary- MDeG. P. & J.215. See the Eng- 
land, 270-283; Betts t». Connecticut lish and Scottish Mercantile Co. v. 
Life Ins. Co., 76 Conn. 377; Camp Brunton, [1892] 2 Q. B. 1-7. 



CH. III.] MAXIMS IN EQIIITY. 77 

to and no more. If, therefore, a person seized of an equitable 
estate (the legal estate being outstanding) makes an assurance 
by way of mortgage or grants an annuity, and afterwards 
conveys the whole estate to a purchaser, he can grant to a 
purchaser that which he has, , viz., the estate subject to the 
mortgage or annuity, and no more. The subsequent grantee 
takes only that which is left in the grantor. Hence grantees 
and incumbrancers claiming in equity take and are ranked 
according to the dates of their securities, and the maxim 
applies. Qui prior ^-est tempore, potior est jure. The first 
grantor is potior, that is, potentior. He has a better and 
superior, because a prior, equity."^ But in order that this 
maxim should apply, the equities must be equal. Should 
they, for any reason, be unequal — should the balance be 
disturbed by fraud, laches, or negligence, the prior equity 
may be postponed.^ 

46, X. Equity imputes an intention to fulfil an obligation.^ 

What is meant by this maxim is that when a person cove- 
nants to do an act, and he does that which may either wholly 
or partially be converted to or towards a completion of the 
covenant, he shall be presumed to have done it with that 
intention. In the case of Wilcocks v. Wilcocks,* which is a 
leading authority upon this point, a person covenanted to 
piirchase and to settle lands of a certain value, and afterwards 
purchased lands of equal or greater value, which descended 
upon his heir, and it was deemed a performance of the cove- 
nant. Upon the same principle a purchase in the name of a 
child ■^ill be considered as an advancement, and not as a re- 
sulting trust for the benefit of the father (the purchaser) ; ' 
and a legacy to a child will be treated as a provision. 

' See Union Bank of London ». pp. 407 and 408. See also ' Farrand 

Kent, 39 Ch. D. 238, for a statement v. Yorkshire Banking Co., 40 Ch. D. 

of the general principle, and the 189. 

exceptions to it. Indiana Co. v. ' Warren v. Adams, 19 Col. 525; 

Kirk, 118 111. A. 102; Kimball v. Jager v. Vollinger, 174 Mass. 521; 

Farmers Bank, 138 N. Y. 500. Swearinger v. Ins. Co., 56 S. C. 355. 

" See Heyder v. Excelsior Building * 2 Vem. 558; 2 Lead. Cas. Eq. 415. 

Loan Association, 42 N. J. Eq. 403, ' Post, Part I., chap, on Implied 

and the remarks of the court on Trusts. 



78 MAXIMS IN EQUITY. [CH. III. 

47. XI. Equity acts in personam. 

It was against the person that the jurisdiction of the Court 
of Chancery was originally acquired/ and an attachment 
against the person has always been, and still is, one of the 
ordinary means of enforcing dbedience to its decrees. Indeed, 
it may be said that, "generally, if not universally, equity 
jurisdiction is exercised in personam and not in rem, and de- 
pends upon the control of the, court over the parties, by rea- 
son of their presence or residence, and not upon the place 
where the land lies in regard to which relief is sought."* 
Hence, when the parties are within the jurisdiction of a court 
of chancery, it will not, ordinarily, hesitate to grant relief, 
although the property to be ultimately affected by the 
decree may lie in another forum. Thus the Court of 
Chancery in England decreed specific performance of a con- 
tract respecting the boundaries of Pennsylvania and Mary- 
land, when colonies, entered into by the proprietaries; ' a 
trustee residing in one state may be compelled to make a 
conveyance of real estate situated in another; * and an ac- 
count may be taken between a mortgagor and mortgagee in 
a Cpurt of Equity although the mortgaged premises Jie out- 
side its territorial jurisdiction.^ 

It follows from this, however, that a decree in equity can- 
not, of itself, divest a title at law, but can only compel the 
holder to convey.* Therefore it was held, in a recent case in 

' Great Falls Manuf . Co. v. Woiv » Penn o. Lord Baltimore, 1 Yea. 

Bter, 23 N. H. 462. 444; 2 Lead. Cas. Eq. 767. 

'' Per Gray, J., in Hart v. Sansom, < Vaughan v. Barclay, 6 Whart. 

110 U. S. 154; King v. Pillow, 90 392. To the same effect are Earl 

Tenn.287;Massiew.Watts,6Cranch, of Kildare v. Eustace, 1 Vem. 419; 

148; Gilliland v. Inabnit, 92 la. 46; Lord Cranstown v. Johnston, 3 Ves. 

Clad 6. Paist, 181 Pa. 148; Bethlehem 170. See also Mitchell v. Bunch, 2 

Water Co. v. Bethlehem Borough, Paige Ch. R. 606; and Moore ». 

253 Pa. 336; Noble v. Grandin, 125 Jaeger, 2 MacArthur, 465; Lindley ». 

Mich. 383; Vaught v. Meador, 99 O'Reilly, 50 N. J. L. 636. 

Va. 669; State ex rel. v. Zachritz, 'Peninsular, etc., Co. v. Pacific 

166 Mo. 307; Butterfield v. Nflgales S. W. Co., 123 Cal. 689. 

Co., 9 Ariz. 212; Byrne v. Jones, » Proctot v. Perebee, 36 N. C 

159 Fed. 321; Vacuum Oil Co. v. 143; Miller ». Sherry, 69 U. S. 241-2; 

Eagle Oil Co., 154 Fed. 867; Eaton v, and see same case, pp. 248-9 
McCaU, 86 Me. 346. 



CH. III.] MAXIMS IN EQUITY. 79 

Virginia, that a court in New York had no power to roake 
title to land in the forn^er state by a decree authorizing the 
committee of a lunatic to convey; for as the owner was in- 
capable of executing a deed, his title could be divested only 
by some process from a court of the sovereign (the State) 
within whose territory the land was situate.^ 

The question is one of great practical importance in fore-; 
closure suits against railroad corporations whose lines of 
railway extend over more than one state. It is now settled 
by the highest authority that a decree of foreclosure and a 
sale of the entire mortgaged property is valid, although a 
portion of that property may lie out of the territorial juris- 
diction of the court making the decree; provided, of course, 
that the jurisdiction over the defendants in personam had 
properly attached. Such was the ruling of the Supreme 
Court of the United States in Muller v. Dows,^ where Mr. 
Justice Strong said: "Without reference to the English 
chancery decisions, where this objection to the-decree would 
be quite untenable, we think the power of courts of chancery 
in this country is sufficient to authorize such a decree as 
was here made. It is here undoubtedly a recognized doc- 
trine that a court of equity, sitting in a state, and having 
jurisdiction of the person, may decree a conveyance by him 
of land in another state, and may enforce the decree by 
process against the defendant. True, it cannot send its 
process into that other state, nor can it deliver possession 
of land in another jurisdiction, but it can command and en- 
force a transfer of the title. And there seems to be no reason 
why it cannot, in a proper case, effect the transfer by the 
agency of the trustees when they are complainants." And 
so in McElrath v. The Pittsburg and Steubenville Railroad 
Go.,' a bill for foreclosure of a mortgage — in which it ap- 
peared that a railroad, company, whose road was partly in 

> Hotchkiss t>. Middlekauf, 96 Va. » 55 Pa. 189. See, also, White v. 

649;/Lindsley v. Union Mining Co., Hall, 12 Vcs. Jr. 321; MacGregor o. 

26 Wash. 301. ' MacGregor, 9 la. 65; and Memphis 

• ' 94 U. S. 449; Riverdale Milla v. Sav. Bk. v. Houchens, 52 0. C. A. 176, 

Alftbawa Co., 198 U. S. 197. 188. 



80 MAXIMS IN EQUITY. [CH. HI. 

Pennsylvania and partly in West Virginia, had mortgaged 
all their rights in the whole road — the court decreed that 
the trustee who had brought the suit, being within its juris- 
diction, should sell and convey all the mortgaged property, 
as well that in ihe state of West Virginia as that in Penn- 
sylvania. But where, in order to the relief sought, it is 
necessary to deal directly with the land itself, the foreign 
situation of the property will be a bar to the jurisdiction. 
Thus, a bill cannot be brought for a partition, of land out- 
side of the jurisdiction, for the court cannot issue a commis- 
sion thither; * nor to remove a nuisance similarly situated, 
for no writ to abate the nuisance would run,^ nor can title 
be made by a master or commissioner where the real estate 
is beyond the territorial jurisdiction of the court by whom 
such officers are appointed.' 

The doctrine that equity acts in personam has also been 
applied for the purpose of restraining a defend9,nt within the 
jurisdiction from prosecuting suits without the jurisdictidii. 
The question whether an injunction should issue under such 
circumstances came before Lord Hardwicke in Mackintosh 
V. Ogilvie,^ and was decided in the aflBrmative. Similar 
rulings havebeen made by many state courts in this country-;^ 
and these decisions have all been approved by the Federal 
Supreme Court.^ 

The maxim that a court of equity acts in "personam must 
not be understood to mean that the jurisdiction of the chan- 
cellor extends to rights of action for perspnal injuries. The 

' Smith's Manual of Equity, 30; ^ Snook v. Snetzer, 25 Ohio, 516; 

See, also, Glenw. Gibson, 9 Barb. 634; Keyser v. Rice, 47 Md. 203; Dehon 

MacGregor v. MacGregor, 9 la. 65; v. Foster, 86 Mass. 545; Sercomb v. 

Guarantee Trust Co. v. Delta & Pine Catlin, 128 111. 556; Dinsmore v. 

Land Go., 43 C. 0. A. 403; and Port Neresheimer, 32 Hun, 204; Zimmer- 

Royal R. R. Co. ». Hammond, 58 Ga. man v. Franke, 34 Kan. 650; Wilson 

523. V. Joseph, 107 Ind. 490; Biggs v. 

' Morris v. Remington, 1 Pars. Eq. Colby, 4 Ind. Ter. 383; Royal League 

C. (Pa.) 387. See, also, Thomas v. v. Kavanagh, 233 111. 175; Frontera 

Hukill, 131 Pa. 298. Co. v. Abaunza, 271 Fed. 199. 

' Watts V. Waddle, 6 Pet. 389; « Cole v. Cunningham, 133 U. S. 

Guarantee Trust Co. v. Delta Land 107; Hyafill v. Buffalo Marine Qo., 

Co., 104 Fed. 5; Fall v. Eastin, 215 266 Fed. 554; City of Jamestown v. 

U. S. 8. • Pa. Gas Co., 264 Fed. 1011, 

M T. R. 193 n. 



CH. III.] MAXIMS IN EQUITY. 81 

reverse is the case. The subject of the jurisdiction of courts 
of equity is property — not persons. Their process is directed 
against persons, and sometimes against property; but there 
must be some right of property involved in order that the 
jurisdiction of the coxu-t may attach. This subject will be 
noticed hereafter; ^ but reference ^may 'be made, in this con- 
nection, to the refusal of courts of chancery to entertain 
^any bill to recover damages for purely personal torts,' or to 
prevent violations of purely political rights.* 

It may not be out of place, moreover, to mention here the 
rule applicable when the res happens to be within the juris- 
diction, and the person whose rights in the res are sought to 
be affected by the decree is a non-resident. In such cases, 
at all events for certain purposes, the court will exercise 
jurisdiction over the thing, although personal service upon 
the defendant may not be possible — whenever service by 
publication, in lieu of a personal service, is authorized by 
statute. Cases not infrequently arise where it is necessary 
that the title to real estate should be perfected by getting 
rid of an outstanding claim. The title to land may be clouded 
by the existence of an alleged right which the holder declines, 
presently, to assert. There is, as we shall see hereafter, a 
jurisdiction in courts of chancery to remove a "cloud" 
upon the title. This power may be exercised if the land is 
within the process of the court, although the party affected 
may be beyond its limits.* 

48. Xn. Equity acts specifically. 

The last maxim which will be noticed is, that equity acts 
specifically, and not by way of compensation; which em- 
bodies a general principle running through the whole system 
of chancery jurisprudence. ' This principle is that equity 
aims at putting parties exactly in the position which they 
ought to occupy; ^ giving them in specie what they are en- 

' See end of Chapter II. of Part receivers, - for injury resulting in 
III., Injunctions, § 465. death, was dismissed. 

'See Brown v. Wabash Ry. Co., » Fletcher w. Tuttle, 151 111. 41. 
S6 lU. 297, where a bill filed against * Arndt v. Griggs, 134 U. S. 320. 

'"Equity looks through form to 



82 MAXIMS IN EQUITY. [CH. III. 

titled to enjoy; and putting a stop, actually, to injuries 
which are being inflicted. Thus, equity decrees the per- 
formance of a contract, and does not give damages for its 
breach. 1 So, also, equity will, under certain circumstances, 
restrain the commission of destructive trespass; " whereas, 
at common law, all that the aggrieved party could obtain 
would be a money compensation for the injury. And so, 
again, a chancellor will sometimes compel a party specifically 
to make good his representations by which another has been 
misled; while in the common-law action of deceit, damages 
alone can be recovered. 

In some exceptional cases, indeed, equity will afford com- 
pensation in lieu of specific relief; but such cases are rare. 
These exceptions, as well as the general principles contained 
in this maxim, will be illustrated more at length under the 
appropriate heads of Specific Performance and Injunction. 

substance." Texas v. Hardenberg, '■ Post, Part III., chap, on Specific 

77 U. S. 89; Zeis^ v. Cohn, 207 Performance. 

N. Y. 407; Brighton v. White, 128 ^Tost, Part III., chap, on Injunc- 

Ind. 320. tions. 



PART I 

EQUITABLE TITLES 



CHAPTER I 



trusts; their origin, history, and general naturh. 



Definition of Trusts. 
Distinction between Trusts and 
Fidei Commisaa. 

51. Origin A)f Trusts. 

52. Trusts before the Statute of 

Uses; Statute 1 Rich. III., c. 1. 
Statute of Uses; 27 Hen. VIII., 

c. 10. 
General nature of Trusts; Active 

and Passive Trusts. 
When Trusts will be executed by 

the Statute; Rules in several 

States. a 



49. 
50, 



53 



54. 



55 



56. Lawful and Unlawful Trusts. 

57. Executed and Executory Trusts; 

Glenorchy v. Bosville; Sack- 
ville-West v. Holmesdale. 

58. Reformation of executory instru- 

ments creating Trusts. 

59. Public and Private Trusts. 

60. General rules for the devolution 

of Equitable Estates. 

61. Alienation of Equitable Estates; 

Liability for _debts. 
62^ Exceptions to the general rules of 
devolution of Equitable Es- 
tates. 



49. Definition. 

A TRUST, in its technical sense, is the Tight, enforceable 
solely in equity, to the beneficial enjojonent of property of 
which the legal title is in another.^ The radical idea of a 
trust is this separate co-existence of the legal title with the 
beneficial ownership, or, as it came to be called, the equi- 
table title. The perfect ownership is, as it were, decomposed 
into its constituent elements of legal title and beneficial 
interest, which are vested in different persons at the same 
time.^ Thus, to take the simplest case, if land is conveyed 



' See Kane v. Bloodgood, 7 J. C. R. 
90; Blaokwell v. Blackwell, 88 Kan. 
495; Warner e. McMullin, 131 Pa. 
381. In McKee v. Lamon, 159 U. S. 
322, the distinction between a trust 



and^ a bailment does not seem to be 
clearly recognized. 

" See the argument in McDonogh's 
Ex'ra t>. Murdook, 15 How. 391. See 

83 



84 TBUSTS; THEIR GENERAL NATURE. [PART I. 

or devised to A on such terms that he is compellable to hold 
it for the benefit of B, here A has the legal title, B has the 
beneficial ownership, or right to enjoy the land; and this 
right, originally enforceable solely in equity by suing but 
a subpoena against A, was considered as attaining the dig- 
nity of a title. 

The length of time during which this separation of the 
ownership into its constituent elements continues, and the 
extent of B's control over the property, in other words, the 
duration and the nature of the trust depend upon the terms 
by which it is created, subject, of course, to certain estab- 
lished legal rules. 

The system of trusts is now so thoroughly recognized that, 
according to the laws of property in England and in other 
countries where the English common law is in force, it is one 
of the rights of ownership that this division of the complete 
title should, if desired, take place. If the absolute owner of 
property wishes for any reason to have the equitable title 
only vested in him and the legal title outstanding in another, 
he has a perfect right to hold and enjoy his property in that 
way. Nor is it necessary that the cestui que trust should be 
under any disability in order that he may enjoy this privi- 
lege. A person sui juris, and who is the absolute owner of 
property, may avail himself of the system of trusts, and may 
keep the legal title outstanding in another as long as he sees 
fit so to do.' 

60. Distinction between Trusts and Fidel Conunissa. 

It has been supposed that the English <rus< was identical 
with, or, at all events, bore a very great resemblance to the 
Roman j^dei commissum; but that there is a broad distinction 
between the two has been pointed out by high authority. In 

also Chaffees o. Risk, 24 Pa. 432; Personal Advance Co., 42 Ch. D. 270; 

Wallace v. Wainwright, 87 Pa. 267. and of Farwell, J., in Rimmer v. 

' See the language of Lord Chap- Webster, [1902] 2 Ch. 170. See aiao 

cellor Cairns in Shropshire Union Young v. Snow, 167 Mass. 287. 

Railways and Canal Co. v. The ,A deed or will does not create a 

Queen, L. R. 7 Eng. and Ir. App. 507; trust unless there is a separation of 

of Chitty, J., in'Carritt v. Real and the legal estate from the beneficial 



CH. I.] trusts; their general nature. 85 

McDonogh'g Executors v. Murdoch * the ' question arose 
whether a "trust" was within the language of the Louisiana 
code prohibiting substitutions and fidei commissa, and it was 
held that it Was not. The difference between the two was 
clearly explained in the opinion of the court in that case,'' 
and, indeed, is obvious from a consideration of the nature of 
the fidei commissa as they existed under the Roman law. 

The^dei commissum was the means of carrying out substitu- 
tions which could not be otherwise effected by the testator. 
By a substitution a party could be appointed ,to take the in- 
heritance, in case the person who was designated as heir in 
the first instance did not make his election to accept the 
inheritance within a specified time, or in case he was a de- 
scendant of the testator, and after becoming heir died under 
puberty.' Thus, the testator could say, "Lucius Titius; be 
heir and make thy'cretion * within the next hundred days 
after thou hast knowledge and ability. But if thou fail so 
to make cretion be disinherited. Then Maevius be heir and 
make thy cretion." * And also, "Titius, my son, be my 
heir. If my son shall not become my heir, or if he become 
my heir and die before he comes into his own governance, 
Seius be heir."* If, however, a stranger, and not a de- 
scendant, was instituted as heir, a substitution could not 
be made in such a way that if the heir died within a 
specified time some other person should be heir to him. 
But this end was effected by means of the fidei com- 
missum,'' whereby the heir was bound to deliver over 
the inheritance either in whole or in part, at or after a 
designated time.* In other words, the fidei commissa were 
the means whereby the transmission of estates, to be enjoyed 
by successive owners, was secured.' The performance of 

enjoyment and a trust cannot exist * Election, choice, 

when the same person possesses both. ' Com. of Gaius, vi sup. 

Dpan V. Vestry, 103 Md. 662. « Id., § 179. 

» 15 Howard, 367. ' Id., § 184. 

' Id. 407-409. 8 Id., §§ 184, 246 to 289. 

' Commentaries of Gaius (Abdy & ' Resembling, in this particular,'the 

Walker), Book II., §§ 174 to 180; system of estates-tail in the English 

and' see McDonogh's Ex'rs v, Mur- law. 
doch, 15 How. 407, 408. 



86 trusts; their general nature. [part i. 

the fidei commissa was enforced at Rome by the consul or 
the praetor whose special jurisdiction was over fidei commissa, 
and in the provinces by the governor.* Subsequently a 
prsetor was appointed for the special purpose of hearing 
such causes, receiving, from the nature of his duty, the name 
of prcetor fidei commissarius.'^ 

It is true that in both the Roman fidei commissa and Eng- 
lish trusts, a confidential relationship was presumed to 
exist,' but in the former it was called into being for the 
purpose of transmitting the inheritance; in the latter, in 
order to regulate the present enjoyment of the estate.* 

The fundamental idea, moreover, which lay at the root of 
both trusts and fidei commissa was probably the same, viz., 
that under certain circumstances it might be convenient or 
desirable that one man should take and hold property, the 
benefit of which was sooner or later to accrue to another; 
but the development of this idea, in the two systems of juris- 
prudence was essentially different. 

The distinction, therefore, which it is desirable to remem- 
ber as existing between the fidei commissum and the trust is 
this, that in the former there' was no separation of the legal 
and equitable title, bjut there was simply a request, which 
afterwards became a duty imposed upon the gravatus, to 
convey the inheritance to another person, either immediately 
or after a certain event, 6. g., the death of the first taker; 
whereas, in the trust, the perfect ownership is decomposed 
into its constituent elements of legal title and beneficial in- 
terest, which -are vested in different persons at the same time.* 

' Gaius, Book II., § 278. trust arises in favor of the latter which 

'Justinian, Lib. II., Til. sdii., he may enforce by bill in equity, if not 

§§ 1 and 2. by action at law. The acceptance of 

"Amos on the Science of Juris- the money, with notice of its ulti- 

prudenee, 91. mate destination, is sufficient to 

*A trust to convey land or to create a duty on the part of the bailee 

transfer or deliver personalty would to devote it to the purposes intended 

bear a close resemblance to & fid^ by the bailor." McKee v. Lamon, 

commissum. "There can be no doubt 159 U. S. 322. 

of the general proposition that where ' See 2 Pollock & Maitland's 

money is placed 'in the hands of one Histoiy of English Law, pp. 226- 

person to be delivered to another, a 236, 



CH. I.] trusts; their general nature. 87 

It may also be here remarked that the fidei commissa arose 
out of testamentary dispositions; whereas, Enghsh trusts 
were originally created only by conveyances inter vivos^ land 
not being devisable before the statute of Henry VIII. 

It may further be observed that the usus awi. usufructus of 
the Roman law are not to be confounded with the English 
use or trust. The usus in the Roman law of property con- 
sisted in the right to the natural use of a thing, owned by 
another, by some definite individual and the family circle of 
which he constituted the head, and was ordinarily not 
transferable. The usufructus was of greater extent than the 
usus, there being added to the latter the fructus or a right to 
enjoy the fruits of land to a greater extent than is necessary 
for daily consumption; and this right could be let, sold, or 
given to another.^ 

61. Origin of Trusts. 

When it was, exactly, that the idea of the separation of 
the complete ownership into the legal and 'fequitable titles 
first made its appearance in England, is, perhaps, impossible 
to say; nor can it be asserted with any certainty whether 
this idea was one of purely English growth, or whether it 
was imported from some other system of laws. The proba- 
bilities are in favor of its indigenous nature; for, as we have 
seen, it has no exact counterpart in the Roman law; * nor is 
it iikely that the English lawyers of very early times had 
opportunities of studying this law, if any such ideas could 
indeed have been gathered from it.' 

In early times, the idea of the separation of the legal and 
equitable titles must have met with an enemy in the feudal 
system. To allow a feud to be held by one person in trust for 
another, would have created confusion in determining to 

■SeeJustinian'alnstitutes, Lib. II., perhaps, to exaggerate the extent to 

tit. iv. and v.; Tompldns and Jen- which the early English law is in- 

kyn's Modern Roman Law, 173, 174. debted to the Roman law. The 

'See the opinion of Judge Camp- Roman law which influenced the 

bell in McDonogh's Executors v. English law was probably the early 

Murdoch, 15 How. 409.- Roman law — not the law of Ju» 

' The tendency in modern times Is, tinian. 



88 trusts; their general nature, [part i. 

whom the lord wias to look for the performance of the serv- 
ices annexed to the feud, and for those pecuniary and other 
advantages which he derived from the death of the feudatory, 
or the alienation of the estate. Hence, Mr. Butler has re- 
garded the introduction of uses as one of the most effective 
blows aimed at the feudal system.^ 

Some attempts, indeed, have been made to show that trusts 
existed in the reign of King Alfred; but the better opinion 
seems, to be that the instance referred to was the description 
of a tenure, and, not the case of a trust.^ The probabilities 
are, that trusts were recognized before the statute of quia 
emptores (13 Edw. I.), and became frequent after that date; 
this probability being founded on authority,* and being fur- 
ther strengthened by the fact alluded to by Mr. Finlason^ 
that we not unfrequently fall into error when we assume that 
"because proceedings are not mentioned as being judicially 
-detoided upon they did not exist." 

Without, however, entering into any elaborate research, it 
may be safely assumed that in the reign of Edward III. the 
beneficial enjoyment of land as distinguished from the legal 
ownership was distinctly recognized; * and it now becomes 
necessary to trace briefly the nature of this beneficial inter- 
est, its development into that permanent equitable estate 
known as a use, the nature of this estate prior to the famous 
statute of uses'of 27 Henry VIII-, the effect of that statute, 
and the character of the equitable interests which it left un- 
touched, and which together with certain other like interests, 
iunder the title of the modern trusts, fell peculiarly under the 
jurisdiction of the Court of Chancery.* 

'Co. Litt. 191, a, note, seo. VI., the taking the profits by one where 

ll- the estate at law is in another is 

» Sanders, U. and T. 7. recognized; and in 7 Rich. II., c. 12, 

• See reference to Bro. Abr. tit. the word use (oeps ad opus, 2 Pollock 

"Feoffmental Uses," in Reeves's and Maitland's History of English 

Hist. Eng. L., vol. 2, p. 575, note Law, 227) is first mentioned. Bacon, 

(Pinlason); and 1 Spence Eq. 439, 23, 25; 1 Spenee Eq. 440. 

note/, 447. « See Perry on Trusts, § 300. 

« In the Statute 50 Edw. III., c. 6, 



CH. I.] trusts; their general, nature. 89 

52. Trusts before the Statute of Uses; Statute 1 Rich. HI., 
c. 1. 

Before the statute of uses there appears to have existed a 
distinction between" the technical "use" and a "trust." 
''Where the trust," says Bacon, ^ "is not special nor transi- 
tory, but general and permanent, there it is an use." The 
perinanent "use" was the natural result and outgrowth of 
the "special trust." Two classes of beneficial interests con- 
sequently arose.* First, the use or simple trust, of which it 
is said "it is not like a rent out of the land, but it is a thing 
collateral annexed to the person touching the land, and is 
no more than a confidence for the use of the land, that is to 
say, a confidence that the feoffees to whom the land is given 
shall permit the feoffor and his heirs, and such persons as he 
shall appoint to receive the profits of the land, and that the 
feoffees shall make such estates of the land as he (the feoffor) 
shall limit. So that their estate is but upon confidence." ' 
Second, the special trust: which was subdivided into the 
"special trjist lawful," as if a man had enfeoffed another 
to the intent or in trust to be re-enfeoffed, or to the intent to 
be vouched, or to the intent to suffer a recovery; and the 
special trust unlawful, or covinous trust, as a trust to defraud 
creditors, or for maintenance, for defeating the tenancy to 
the praecipe, the statutes of mortmain, or the wardship of 
lords. 

The courts of common law took no cognizance of these 
equitable interests, and the only remedy which the bene- 
ficiary enjoyed was by means of a subpoena out of chancery.^ 

' Essay on Uses, 8. See also Hutr 641; Vanderstegen v. Witham, 6 p. 

chins V. Heywood, 50 N. H. 497. & W. 457; Bond v. Nurse, 10 Q. B. 

* See Sanders, Uses and Trusts, 6; 244; Edwards v. Lowndes, 1 El. & 

Lewin on Trusts (l^th Eng. ed.), p. 5; Bl. 81; Millard's Case, 2 Freem. Ch. 

1 Spence Eq. 448. 43. Nor had the spiritual courts any 

•Dalamere v. Barnard, 1 Plowden, jurisdiction. See Witter v. Witter, 3 

352; Co. Lit. 272 5. P. Wms. 102; King v. Jenkins, 3 Dow. 

*"A trust," said Lord Hardwicke, & R. 41; Edwards v. Graves, Hob. 

"is where there is such a confidence 265; Farrington v. Knightly, 1 P. 

between parties that no action at law Wms. 549. See further on the subject 
wiU Ue." Sturt. v. Mellish, 2 Atk. ' McCartney w. Bostwick, 32 N. Y. 53; 

612. See, also, Allen v. Imlett, Holt, Dorsey v. Garey, 30 Md. 489. In 



90 trusts; their generai nature. [part i. 

Trusts of both descriptions had their origin either in fraud 
or fear.' In fraud, for they were designed originally by 
ecclesiastics for the purpose of evading the statutes of mort- 
main, and were subsequently made use of in order to effec- 
tuate some covinous intent on the part of the feoffee, such as 
to defraud a lord of his wardship or creditors of their remedy 
for their debts; in fear, for the effectiveness of this method 
of defeating strictly legal rights was soon- readily taken ad- 
vantage of during the disputes between the Houses of York 
and Lancaster, which began with Bolingbroke's usurpa- 
tion in the reign of Richard II., in order to avoid the forfeit- 
ures with which the alternately successful parties visited 
the estates of their adversaries. Uses and special trusts, 
therefore, grew into a system, and they came to be governed 
by well-established principles. As beneficial interests rested 
solely upon the conscience of the feoffeev corporations were 
held not to be capable of a seisin to use, for they had no souls.^ 
The king or, queen could not be a feoffee to uses, for it was 
thought inconsistent with the royal dignity that such a con- 
fidence should be enforced against a sovereign at the suit of 
a subject. Hence, when the Duke of Gloucester, to whom 
manyjestates had been conveyed in trust, acquired the crown, 
a special statute was passed in order to remedy the mischief 
which would otherwise have arisen from the incapacity of 
enforcing trusts as against the king.^ 
In addition to confidence of person, privity of estate was also 

Pennsylvania the cestui que trust may But in later times it seems to have 

enforce the right to the possession of been thought that there could be a 

real estate, even as against the trus- "royal trustee," subject to the prac- 

tee, by an action of ejectment. Ken- tical difficulty of enforcing a trust' 

nedy v. Fury, 1 Dall. 72. against a monarch. See Penn v. 

' See the argument of Sir Robert Lord Baltimore, 1 Ves. Sr. 453; Earl 

Atkyns in Att.-Gen. v. Sands, Hard, of Kildare v. Eustace, 1 Vern. 439, 

491. "Trusts and uses," he said, note 1; Perry on Trusts, §40. See 

"have the same parents, fraud and particularly Briggs v. Light-boats, 11 

fear; and the same nurse, a court of Allen, 157, where the authorities 

conscience." upon the subject of the sovereign's 

' Sanders, 57-87; Jenkins, 195. immunity from suit are collected. 

' Stat. 1 Rich. III., c. 5. See See, also, Prioleau v. United States, 

Hodge V. Att.-Gen., 3 Younge & Col. L. R. 2 Eq. 659; and New v. Bonak«, 

342. L. R. 4 Eq. 655. 



CH. I.] TRUSTS, THEIR GENERAL NATURE. 91 

necessary. No person could be seized to a use who was not 
in of the same estate as that of which the use had been de- 
clared. All persons who came in by title paramount, all 
persons who were in in the post and not in the per, took the 
estate free of the use. Such was the lord who was in by es- 
cheat, or a tenant by the curtesy. So also a disseisor, abator, 
or intruder. 1 

A consideration was necessary to raise a, use where the 
conveyance was one which did not operate by transmutation of 
possession; and no use could be raised either of personal 
inheritances, such as annuities, or of things quoe ipso usu 
consumuntur, such as commons or ways in gross. 

While the feoffee to uses was, in the eye of the law, the 
real owner, the cestui que use could exercise many acts o^ 
ownership over the use which no holder of a legal title could 
enjoy over land itself. He coul4 devise it, he could alien it,'' 
and it descended according to the rules of common law in 
respect to inheritances of land. His right to the land, how- 
ever, was a mere chose in action, a mere right to sue out a sub- 
poena in chancery, and it was liable to be defeated by the 
alienation of the holder of the legal title. It was subject to 
the feudal duties of the feoffee to uses, and to the dower of 
his wife, and to the danger of being forfeited for his treason 
or felony; and it could not, originally, be enforced against 
his heir.' 

In the reign of Richard III. a very important statute * was 
passed affecting the rights and powers of the cestui que use. 
That statute, after reciting the mischief growing out of jin- 
known and privy feoffments, provided in substance that the 
cestui que use should have the power of alienating not only the 
use but the possession also, or, in other words, that an aliena- 
tion by the cestui que use should "have the same effect as.if he 
had the legal ownership." 

' Sanders, 55, 61, 62; 1 Spence Eqi p. 16, Rowe's edition. See Moyle 

445. Finch's Case, 4 Inst. 86. 

' But a subpoena was 'not assign- ' Sanders, 67; 1 Spence Eq. 446. 
able in a case of a bare^ trust and con- * 1 Rich. III., c. 1. 
fidence. See Bacon, Uses, note to 



92 trusts; their general nature. [part i. 

It has been argued by Mr. Sanders that prior to the statute 
of Richard IIL it had been determined that on a feofifment for 
life or in tail, or a grant for a term of years, there could be no 
declaration of a use, and that a subpoena would not lie against 
a person so seised, the reason being "that as to the estate or 
seisin of a tenant In tail no use could be limited upon it; first, 
because the tenure of itself created a valuable Qonsideratibn; 
secondly, because the statute de donis had appropriated and 
fixed the estate tail to the donee and the heirs of his body, so 
that neither' he nor they could execute the use;" and as to 
the tenant for life, "the consideration of tenure between the 
lessor and lessee appears to have been incompatible with the 
use;" ^ while as to the interest of a termor, "it was supposed 
that the contract between the lessor and lessee, and the con- 
sideration upon which the latter took the lease, were incom- 
patible with and repugnant to the nature of a use declared 
to any other person." ^ 

The point is not of any great practical importance, except 
as Illustrating the gradual extension of equitable interests 
to all degrees of estates, for the statute of Henry VIII. in- 
cluded uses declared upon the seisin of a tenant for life (show- 
ing their existence at that time) ; and courts of equity, after 
the passage of that statute, began to enforce confidences 
declared upon terms for years, not as the old-fashioned uses, 
but as trusts.* 

The point is also of unportance.as showing the true nature 
and ej^tent of a trust, for the definition sometimes given of a 
trust, viz., that it is a use not executed by the statute of 
Henry VIII.,* is too lunited, if use is employed in its strict 
technical sense.- 

The modern trust includes not only those technical u^es 
which were not executed' by the statute, but also equitable 
interests which never were considered uses,^ and did not. 

• Sanders, U. & T. 28. It will be ' Sanders, U. & T. 31. 

observed that this argument has no ' See Sanders, U. & T. 32. 

application where the life estate was * 1 Cruise Real Prop. 380; Rerry on 

not created, but merely transferred by Trusts, § 300. See, also, The King 

the conveyance. See Lewin (10th and Holland, Styl. 40. 

Eng. ed.), 4; 1 Cruise, Real Prop. 350. ' Sanders, U. & T. 32. 



CH. I.] trusts; theik general nature. 93 

therefoxej fall within the provisions of the statute. These 
^equitable interests, in conunon with the unexecuted uses, 
received the name of trusts.^ It may be remembered here 
that the term "trust" did not include every interest in land 
recognized in the Court of Chancery. The equity of redemp- 
tion of a mortgagor, for example, was an equitable interest 
analogous to a trust, but nevertheless distinct and different 
from it.^ 

To return to the statute of Richard III.; a difficulty arose 
which seems not to have been foreseen, viz., that while the 
power of alienation was conferred upon the cestui que use, ijio 
restraint was imposed upon the like power which already ex- 
isted in the feoffee to uses. Hence, if a conveyance were 
made by the latter, his alienee might and did interfere with 
the enjoyment of the alienee of the cestui que use. This 
highly unsatisfactory condition of titles led, among other 
things, to "the enactment- of the famous Statute of Uses, 27 
Henry VIII., c. 10. 

63. Statute of Uses; 27 Hen. VIII., c. 10. 

The provisions of this statute are well known. It enacted, 
in substance, that wherever any person,' by any assurance, 
stood seized to the use of ahother for any estate the cestui que - 
Mse should be deemed to be in lawfuFseisin and possession of 
the same estate in the land itself as he had in the use. In the 
language of conveyancing, it transferred the use into a pos- 
session, or executed the use. Its objects, according to the 
preamble, were "for the extirpating and extinguishment of 
all such subtle practised feoffments, fines, recoveries, abuses, 
and errors heretofore used and accustomed in this reialm, 
* * * and to the intent that the king's highness, or any other 

■ "In modem times trust estates were not on a true foundation until 

are extremely analogous to uses be- Lord Nottingham Leld the great 

fore the statute of uses. / do not say seal." Burgess v. Wheate, 1 Ed«n, 

they are always exactly the same." See 223; Philips v. Brydges, 3 Vea. Jr. 127; 

Lord Cranworth in Penny v. Allen, 7 Kemp v. Kemp, 5 Ves. Jr. 858; Perry, 

DeG. M. & G. 422. § 8. 

• Sanders, U. & T. 279; Tucker v. ' A firm is not a person. Silverman 

Thurstan, 17 Vea. Jr. 133. "Trusts v. Kriatufek, 162 III. 230. 



94 trusts; theib general nature. [part i. 

his subjects of this realm, shall not in any wise hereafter, by 
any means or inventions be deceived, damaged, or hurt by 
reason of such trusts, uses, and confidences;" and in addition 
to conferring upon the cestui que use the legal title to and the 
possession of the land, it gave him the power to protect his 
possession by action or entry against any person "for any 
waste, disseisin, trespass, condition broken, or any other 
offence" touching the same. 

Besides this statute. Parliament in the same year passed an- 
other act for the purpose of putting a 'stop to secret convey- 
ances. This was the statute for "enrolment of bargains and 
sales," ' which provided for the registration of all bargains 
and sales of land, whereby any estate of inheritance or free- 
hold should be made to take effect in any person, or any use 
of the same should be made. 

The objects, however, which these statutes professed to 
have in view were soon defeated. 

The statutes in regard to bargains and sales provided 
only for the enrolment of such deeds as attempted to pass 
freehold estates, and did not apply to terms for years. Hence 
arose the well-known system of conveyance by lease and 
release, whereby a lease for a year was made, by bargain 
and sale, and the lessee being then in possession by virtue 
of the statutes of uses, became capable of receiving a re- 
lease of the fee.'' 

The construction placed upon the statute of uses, also, 
limited its operation to a great degree. 

It was considered that copyholds did not fall within the 
purview of the statute, because it was against the nature 
of copyhold tenure that any one should be introduced into 
the estate without the consent of the lord.* It was decided 
that a use limited upon a use was not executed by the stat- 
ute; * or, in other words, that the statute acted but once 

^ 27 Henry VIII., c. 16. S. id me le vendor, ne lesser terre al 

* See Hurst's Lessee t. McNeil, 1 luy rendrant rerU, habend al use del 
Wash. C. C. 74. lessor, car ces est contrarie al ley et 

• Gilbert's Tenures, 170; Co. Litt. reason, car il ad recompence pur ceo. 
722, o; Butler's Notes, § viii., 2. 36 Hen. VIII., B. N. C. 284. This 

« Home no poet vervler terre al J. was the decieioo of the common-law 



CH. I.] 



TRUSTS, THEIR GENERAL NATURE. 



95 



m the same conveyance; and by this means a statute "made 
upon great consideration, introduced in a solemn and pom- 
pous manner,'' by this strict construction, has had no other 
effect than \p add at most three words to a conveyance.' 
It was also held that where the feoffee to uses was to con- 
vey the land, or to collect and pay over the profits, the use 
was not executed.^ The uses which were not executed by 
the statute have been grouped by Mr. Sanders into six 
classes as follows: 1. Contingent uses, which are not executed 
during the suspense of the contingency; 2. Uses limited of 
copyhold lands; 3. Devises to uses; ' 4. Active trusts, such 
as to pay over profits, convey or sell,' or to preserve contin- 
gent remainders; * 5. Uses limited of chattel interests, 
6. A use upon a use.* Probably, however, all the classes 



courts, 80 that tho statute of uses does 
not seem to have been very popular. 
Before the statute of uses chancery 
would not allow a use to be declared 
in opposition to the consideration, 
and theichanceryTule was the same 
as that afterwards laid down at law 
in the case in Little Brooke. After 
' the statute the common-law qpurts 
adopted the chancery rule, and. equity 
then went one step farther. The 
doctrine at law was not so much that 
a use upon a use was not executed, as 
that a use could not be limited upon 
a use, for the first use was supposed 
to have exhausted the consideration, 
and there was nothing to support the 
second use. Therefore it dropped 
out of sight at law. It had no exist- 
ence in the eye of the law, and of 
course the legal title could not attach 
itself to it. See, also, Tyrrel's Case, 
Dyer, 155, o; Doe dem. Lloyd v. 
Passingham, 6 Barn. & Cres. 305; 
Sanders, 276; Reid v. Gordon, 35 Md. 
183; CroxaU v. Shererd, 5 Wall. 268; 
Matthews v. Ward, 10 Gill & Johns. 
443; Perry on Trusts, § 6. See, also. 
Smith V. Oliver, 11 S. & R. 257, where 
it was held that a trust could not 



exist as to a mere improvement right 
which was simply an equity against 
the Commonwealth. 

The rule stated in the text was of 
great practical importance in the 
method of conveyance known as bar- 
gain and sale. By a bargain and sale 
the vendor of the land by force of the 
pecuniary consideration of the con- 
tract became seised to the use of the 
vendee, and it was that use, so 
created, that the statute executed 
into, a legal estate in the vendee. 
Hence, as under the above rule the 
statute never acted but once in the 
same conveyance, it followed that 
all the limitations ulterior to that of 
the conveyance were unexecuted;- in 
other words, were trusts. See Mat- 
thews V. Ward, 10 Gill & Johns. 444; 
Preston On Conveyancing, 482, 483. 

' Hopkins v. Hopkins, 1 Atk. 591. 

'Sanders, 253. 

• Though as to this, see Doe dem. 
Cooper V. Finch, 4 Barn. & Ad. 305. 

* Kay ». Scates, 37 Pa. 37; Hart v. 
BaylisB, 97 Tenn. 80; Pugh v. Hayes, 
113 Mo. 424; Johnson v. Lee, 228 111, 
167. 

' Sanders on Usee, 240 et seq. 



96 TEXTSTS, THEIB GENERAL NATUKE. [PABT I. 

into which the. uses which survived the statute have been 
divided may be classified under two general heads :j/Jrsf,, those 
uses which, though falling within the terms of the statute, 
were released from its operation by the construction put 
upon it by the courts, of which the use upon a use is an 
example; and second, those uses which did not fall within 
the language of the statute, such as uses of chattel interests.* 
Whatever subdivision, however, may he suggested by the 
convenience or fancy of authors, all of these equitable in- 
terests, now under consideration, may be treated asx em- 
braced in the one great family of modem trusts, the origin 
of which having been noticed, it will. now be proper to pro- 
ceed to the consideration of their different kinds, their man- 
ner of creation, ^.nd the pmposesfor which they are ordi- 
narily called into existence. 

64. General Nature of Trusts; Active and Passive Trusts. 

. Trusts in. respect of the general nature of the duties of 
trustees, and the object for which the trust is created, may 
be divided into active and passive, lawful and unlawful, 
executed and executory, private and public. 

An active or special trust; scarcely requires definition. It 
exists when a trustee has certain 'duties to perform which 
render it. necessary, for the purposes of the trust, that the 
legal title should remain in him. When this is the case the 
cestui que trust is entitled only to the beneficial interest, and 
cannot call upon the trustee to convey. For example: where 
there is a trust for the payment df debts, the trustee must 
necessarily have the legal title of the trust property in him 
in order to get in the assets, turn them into cash, and dis- 
charge the liabilities. The creditors whose debts are to be 
paid have, therefore, no right to the legal title of the prop- 
erty or to its possession. They have simply an interest, 
which a court of equity will protect, in seeing that the trust 
is properly carried out. 

' After the passage of the statute of trust. See Willett v. Sandfoid, 1 

uses interests in land were therefore Vea. 186; Coryton v. Hefyar, 2 Cox, 

of three kinds— (1) the common-law 342; Perry on TVuflts, § 7. 
(or legal) fm; (2) the use; (3) the 



CH. I.] trusts; their general nature. 97 

A passive (or, as it is sometimes called, a simple) trust has 
been defined to be a trust in which the property is vested in 
one person upon trust for another, and the nature of the 
trust, not beuig qualified by the settlor, is left to the construc- 
tion of the law. In this case the cestui que trust has jms hab- 
endi, or right ,to be put in actual possession of the property, 
and jus disponendi, or the right to call upon the trustee to 
execute conveyances of the legal estate as the cestui que trust 
directs.^ « 

65. When Trusts will be executed by the Statute; Rules 
in several States. 

A trust, which at the time of its creation is a simple or pas- 
sive trust, will be executed by the statute of uses, the mere 
circumstance that the word "trust" is used instead of the 
word "use" making no difference.* But where a trust which 
has been once active becomes passive, or where for any 
reason the trustee becomes the holder of a mere dry legal 
estate, such a trust is not necessarily executed by the statute, 
but the legal title may remain in the dry trustee.^ If the 
mere fact that the trustee had active duties to p»form was 
the only circumstance that had prevented the statute from 
operating, the trust will be execi^ted when the active duties 
have ceased.* But if the non-execution of the trust by the 
statute did not originally and solely depend upon the activity 
of the trust, 'the fact that the trust has ceased to be active 
win not of itself cause the statute to apply. ^ Under such 
circumstances, however, the trustee is bound to convey the 
legal title at the request of the cestui qui trust; ' and after a 
great lapse of time, and in support of long continued posses- 

'Lewin (12th Eng. ed.), 16. See v. Castles, 3 Gray, 323; Liptrot v. 



Mills V. Johnston, [1894] 3 Ch. 204 
McCune v. Baker, 155 Pa. 503; Mc- 
Kenzie v. Sumner, 114 N. C. 425 
Behringer's Estate, 265 Pa. 114. 
« Austen v. Taylor, 1 Eden, 361 
Lewin on Trusts (12th Eng. ed.). 



Holmes, 1 Kelley (Ga.), 381; Hooper 
V. Feigner, 80 Md. 271-272; Hopkins 
V. Kent, 145 N. Y. 368. 

* See Perry on Trusts, § 351. 

' HiU on Trustees, 316; Leonard's 
Lessee v. Diamond, 31 Md. 541; Sher- 



233-245. man v. Dodge, 28 Vt. 30; see Healey 

' Hill on Trustees, 316. v. Alston, 25 Miss. 192. 

* See Perry on Trusts, § 351; Welles 

7 



98 trusts; THEIR GENERAL NATURE. [PART I. 

sion on the part of the person holding ihe beneficial interest, 
such conveyance will be presumed.^ 

Even if the purposes of the trust have not been all accom- 
plished, or the trust may not have ceased by expiration of 
time, yet if all the cestuis qve trustent are in existence and sui 
juris, and consent thereto, the courts may decree the deter- 
mination of the trust and a distribution of the trust-fund 
among those entitled.^ 

In Pennsylvania the courts have departed from the Eng- 
lish doctrine in two particulars; first, in regarding some 
trusts not to be active which in England would have been so 
considered; and, secondly, in holding that, in passive trusts, 
the use was executed by the statute in cases in which in Eng- . 
land the ruling would have been different. "Many trusts," 
it has been said,' "which would be classed as active ones in 
England would be regarded here (in Pennsylvania) as passive, 
as, for example, the distinction between a trust to receive 
and pay and one to permit and suffer the cestui que trust to 
receive is not recognized." Indeed this doctrine was at one 
time pushed to great lengths; and it was held in Kuhn v. 
Newman,* and some other cases, ^ that equitable were con- 
verted into legal estates in all cases except those of active 
trusts, and even then when the purposes of the trust did not 
furnish any legitimate reason for preserving it from being 
executed in the beneficiary. This extreme position was, 
however, subsequently abandoned, and the cases just cited 

' Leonard's Lessee v. Diamond, 31 142 Cal. 15; Tilton v. Davidson, 98 

Md. 541-542; Matthews v. Ward, 10 Me. 55; Welch v. Episcopal Theolog- 

GiU & Johns. 443; Jackson v. Pierce, ical School, 189 Mass. 108; Olsen v. 

2John8. 226; Aikin«. Smith, ISneed, Youngerman, 136 la. 404. 

304; Den ex dem. Obert v. Bordine, 20 -i4n Rife v. Geyer, 59 Pa. 396^ See 

N. J. Law, 394; Hill on Trustees, Philadelphia Trust Co.'s Appeal, 93 

253. . Pa. 209; and Hemphill's Estate, 180 

2 Smith w. Harrington, 4 Allen, 576; Pa. 95. 

Bowditch V. Andrew, 8 Allen, 339; <26 Pa. 227. 

Culbertson's Appeal, 76 Pa. 148; = ^lyjiichcotg „ Lyle's Ex'rs, 28 

Stafford's Estate, 258"^ Pa. 595; Ja. 73; Bush's Appeal, 33 Pa. 85. 

Wood's Estate, 261 Pa. 483; Ajmis- See also Williams ». Leech, 28 Pa. 89; 

tead V. Hartt, 97 Va. 316; Nye v. Price v: Taylor, 28 Pa. 95; Naglee's 

Koehne, 22 R. I. 118; Perry on App., 33 Pa. 89; McKee ». McKinley, 

Trusts, §§ 274, 922; Eakle v. Ingram, 33 Pa. 92; Kay v. Scates, 37 Pa. 31. 



CH. I.] trusts; their general nature. 99 

overruled,* and the law is now held to be that where an 
active trust is created to give effect to a well-defined lawful 
purpose, the trust must be sustained whether the cestui que 
trust be sui juris or not.^ And, even if the special purpose of 
the trust fails, it has been held that, where the duties of the 
trustee and the instrument creating the trust are of such a 
character that an ulterior purpose for maintaining the trust 
is sufficiently evinced/ the trust will be supported.' And 
d fortiori is this the Case when one special purpose of the 
trust (such as for coverture) fails, yet another object (as, for 
instance, the protection of remaindermen) subsists.* 

But when the special _^urpose of the trust has been deter- 
mined, and no general intention to establish a continuing 
trust outside the special purpose appears, the trust will fall. 
Thus, when a trust for the sole and separate use of a married 
woman has been created, and the "trust is one for coverture 
merely, and the fenje subsequently becomes discovert, the 
trust will be treated as executed, or, if necessary to make 
the title marketable, the trustee will be decreed to convey.' 
Nor is the trust preserved by the mere circumstance thdt 
the machinery of an active trust has been created if, in the 
point of fact, the object for which that machinery was de- 
signed has failed. "The mere form of words," it has been 
said,^ "importing an active trust does not sustain the trust 
if the purpose of its creation should fail." And in Ogden'a 
Appeal' it was said by the same judge: "The trust for 

'Barnett's App., 46 Pa. 392; » Bacon'sAppeal,57Pa.512;Duim 

Shankland's App., 47 Pa. 113; Wiek- & Riddle's Appeal, 85 Pa. 94; Ash'a 

ham V. Berry, 55 Pa. 71; Hays'a Es- Appeal, 80 Pa. 497; Delbert's Ap- 

tate, 184 Pa. 386; Deniston v. Den- peal, 83 Pa. 462; Ingersoll's Appeal, 

iston, 263 Pa. 229. 86 Pa. 240; Livezeyls Appeal, 106 

''Williams's Appeals, 83 Pa. 377; Pa. 201; Van Leer o. Van Leer, 221 

Phillips's Appeal, 80 Pa. 472; Earp's. Pa. 195. ~ 

Apppal, 75 Pa. 119; Huber's Appeal, * Kuntzleman's " Estate, 136 Pa. 

80 Pa. 348; Ashhurst's Appeal, 77 Pa. 151. . See, Seitzinger's Estate, 170 

464; Deibert's Appeal, 78 Pa. 297; Pa. 529; and Wolfinger v. Fell, 

Keene's Est., 81 Pa. 133. See Park- 195 Pa. 12. 

er's Appeal, 61 Pa. 478; Little v. ".Dodson v. Ball, 60 Pa. 492; 

Wilcox, 119 Pa. 439; Watson's Ap- Field's Estate, 266 Pa. 478. 

peal, 125 Pa. 345; and Cooper's Es- « In Yamall's Appeal, 70 Pa. 339; 

tate, 150 Pa. 576;,Vaughan's Estate, Bristor v. Tasker, 135 Pa. 117; 

230 Pa. 554; Schuldt v. Trust Co., Koenig's Appeal, 57 Pa. 352. 

270 Pa. 364. ' 70 Pa. 608; Williams's Appeals, 



100 trusts; theib general nature. [part i. 

coverture, not being in immediate contemplation of marriage, 
never took effect. * * * The active duties * * * having 
sole reference to this supposed trust necessarily fell with it- 
An active trust having no object to accomplish for the bene- 
fit lOf the cestui que trust, clearly will not be continued for 
the mere benefit or pleasure of-the trustee. The object of 
the testator having failed or ceased, the lawTWJU execute 
the use." 

The other departure of the Pennsylvania doctrine from the 
English rule is that, in some cases where in England the trust 
would not h%> executed (e. g., where there is a mere trust to 
convey),^ the severance of the legal and equitable titles 
will not be considered to exist, and the legal fee will be 
treated as having passed to the beneficial owner. ^ "It is 
true that we have in some cases decreed conveyances from 
a trustee to a cestui que trust wten the purpose of a teust has 
been .fulfilled, but, this was not because the legal and equi- 
table titles remained apart. It was to dissipate a useless 
cloud upon the title and make the property' more market- 
able.",» , . 

And in Rife J). Geyer * it was said that in Pennsylvania, 
" whenever the entire beneficial interest is in the cestui que 
iritsf without restriction as to the enjojTuent of it, there is 
no reason why it should not be considered as. actually exe- 
cuted. , No fo^nal conveyance of the legal estate is necess.ary, 
though it will be decreed, because the nominal trust beclouds 
the title and embarrasses the rights of alienation which be- 
long to the true owner," ^ 

83 Pa. 390; Carson v. Fuhs, 131 Pa. v. Newman, 26 Pa. 227; Rush v. 

256; Sheaff's Estate, 231 Pa. 251; Lewis, 21 Pa. 72; Bush's Appeal, 33 

MoCormick v. Sypher, 238 Pa. 185. Pa. 85; Bacon's Appeal, 57 Pa. 504; 

1 See Yarnall's Appeal, 70 Pa. 335; Freyvogle v. Hughes, 56 Pa. 228j 

Barnett's Appeal, 46 Pa. 392; Nice's Westcott v. Edmunds, 68 Pa. 37; 

Appeal, 50 Pa. 143. ' ' Tucker's Appeal, 75 Pa. 354. See, 

' Bacon's Appeal, 57 Pa. 604. also, in this connection, Hayes v. 

' W. 613. . Tabor, 41 N. H. 521. Refereniie may 

< 59 Pa. 396. Approved in Cham- also be had to Roberts v. Moseley, 

berlain «. Maynes, 180 Pa. 39-42. 51 Mo. 282, where it was held that, 

' See also Kay «. Scates, 37 Pa. 40; on the death of a/ejree covert, the sep- 

Megargeei). Naglee,64Pa.216;Kuhn arate use will be considered as ex- 



CH. I.] TRtrSTS; THEIR GENERAL NATURE. lOl 

The return of trusts into favor, as shown by Barnett's Ap- 
peal ^ and Shankland's Appeal,^ is further illustrated by 
subsequent cases, cited in' the note, in which the trusts were 
upheld.^ These last-mentioned cases are illustrations of 
that portion of the rule, just mentioned, which has relation 
to the quantity of the estate vested in the beneficiary. When 
the entire beneficial interest is vested in the beneficiary, and 
the trust has become a simple or passive one, the use will be 
considered as executed, or (if needful for the. marketability 
of the title) the trustees will be decreed to convey.* But 
where the estate of the beneficiary is but partial, thfe same 
rule does not apply, and the trust will be sustained.' 

The Pennsylvania decisions upon this subject have been no- 
ticed with some particularity, as in them the distinctions be- 
tween active and passive trusts, and between those which'are 
arid those which are not executed by the statute, have been, 
-perhaps, more frequently investigated than elsewhere; and 
the fluctuations of opinion which have taken place upbri the 
subject have furnished an episode in th6 history of trusts 
which it is useful to study. , 

At one time no coXu"t possessed ojf equity powers existed in 
Massachusetts. It was accordingly held, while the law was 
in that condition, that a trust should be treated as a use exe^ 
cuted, unless such a construction would be repugnant to the 
manifest intention of the instrument.* It will be remem- 
bered, however, that the coju-ts of that state now have equity 
power.'' 

In some states, as in Nqw York, Minnesota, Louisiana, Cali- 
fornia, and Wisconsin, trusts have been abolished, except 
within very narrow limits.* In the state last named, how- 

ecuted without the necessity of a ^ See JEarp's Appeal, Ashhurst's 

conveyance. » Appeal (supra). See, also, Stam- 

1 46 Pa. 392. baugh's Estate, 135 Pa-. 585; Gour- 

» 47 Pa. 113. ley's Estate, 238 Pa. 62. , 

' Earif's Appeal, 75 Pa. 119; Ash- , « Norton v. Leonard, 12" Pick. 157. 

hurst's Appeal, 77 Pa. 464; Spring's ' Ante, p. 27. 

Estate, 216 Pa. 529; Henderson's * See Voorhees v. Presbyterian Ch., 

Estate, 258 Pa. 514; Simonin's Est- 17 Barb. 103; In re Evenson, 161 

ate, 260 Pa. 395; Towne's Estate, Wis. 627; Ward's Succession, 110 

260 Pa. 443. La. 75; Fair Estate, 132 Cal. 523; 

*See Sharpless's Estate, 151,Pa. Shanahan v. Kelly, 88 Minn. 202. 
214. 



102 TEUSTSpTHBIR GENERAL NATURE. [PART I. 

ever, it has been held that passive trusts only were abolished 
by the statute, and that active trusts may still be created.^ 
The provision of the statute of uses, and the construction 
put upon that act, have been already explained.^ In nearly 
all of the United States this statute is in force or its provisions 
have been adopted by legislative enactments.* The only 
exceptions to this rule appear to be Vermont,* Michigan,^ 
Ohio,' West Virginia,'^ and Nebraska,* and, to a limited 
extent, Virgini^,, North Carolina, Florida, Mississippi, Ken- 
tucky, Illinois, and California.* Even in some states where 
the statute is not in force, and has not been applied, uses 
are executed by a sort of common law.*" This theory was 
indeed pushed to great lengths in Pennsylvania, where (as 
has been already stated) it was at one time held that equi- 
table were converted into legal estates in all cases except 
those of active trusts, and even then when the purposes of 
the trust did noLfurnish any legitimate reason for preserving 
it from being executed in the beneficiary." But this ex- 
treme position was subsequently abandoned by the courts, 
and the law restored to its former basis. ^^ , • 

» Goodrich v. The City of Milwau- v. Smith, 154 Cal. 186j Bass v. Soott, 

kee, 24 Wis. 429. See Backhaus v. 2 Leigh, 356. 

Backhaus, 70 Wis. 518; Holmes v. "Bacon v. Taylor, Kirby, -368; 

Walter, 118 Wis. 409. Bryan v. Bradley, 16 Conn. 483; 

' Ante, pp. 93-96. Coughlin v. Seago, 53 Ga. 250; Sher- 

» See Perry on Trusts, §299, note, man v. Dodge, 28 Vt. 31; Society 

for a detailed statementjof the stat- for Propagation ,of the Gospel v. 

utes and decisions in the different Town of Hartland, 2 Paine C. C. 539; 

states; also, French v. French, 3 N. H. Guest v. Farley, 19 Mo. 149; Horton 

234; Witham v. Brooner, 63 111. 344; v. Sledge, 29 Ala. 478. 

Hutchins v. Heywood, 50 N. H. 497; " Kuhn v. Newman, 26 Pa. 227; 

and Melick v. Pidcock, 44 N. J. Eq. Whichcote v. Lyle's Ex'rs, 28 Pa. 73; 

525; Teller v. Hill, 18 Colo. App. Bush's Appeal, 33 Pa. 85. See, also, 

509. Williams v. Leech, 28 Pa. 89; Price v. 

^ Gorham v. Daniels, 23 Vt. 600. Taylor, 28 Pa. 95; Naglee's Appeal, 

» Trask v. Green, 9 Mich. 358. 33 Pa. 89; McKee ». McKinley, 33 

" Helfenstine v. Garrard, 7 Ohio Pa. 92; Kay v. Scates, 37 Pa. 31. 

(0. S.), 276. "Barnett's Appeal, 46 Pa. 392; 

' Blake v. O'Neal, 63 W. Va. 483. Shankland's Appeal, 47 Pa. 113. See, 

' Farmers' Ins. Co. v. Jensen, 58 also; Bacon's Appeal, 57 Pa. 504. 

Neb. 522. In Ogden's Appeal, 70 Pa. 501, there 

' Perry on Trusts, i299; Keating was a trust for the sole and separate 



CH. I.] trusts; their general NATtJBB. 103 

The general tendency of the American, courts is, perhaps, 
to give a very liberal effect to the statute of uses and the 
kindred acts. Thus, the strict rule adopted in Tyrrd's case, 
that a use limited upon a use will not be executed, has been 
disapproved in Massachusetts; ^ and it has been doubted by 
a learned author whether the rule in Tyrrel's case is to be 
regarded as a rule of construction in all or any of the United 
States.^ But in some states the rule in Tyrrel's case is ad- 
hered to. Thus, in Gjiest v. Farley,* it was distinctly decided 
that where a use was limited upon a deed of bargain and sale, 
it was not executed by the statute, even though the considera- 
tion moved from the cestui que^use. 

It must be remembered that the statute of uses did not ex- 
tend to personalty; and this is perhaps the general rule 
throughout the United States, although the subject is, of 
course, regulated by the language of the particular statute in 
each statev* 

When active duties are to be performed by the trustees the 
rule in the United States is generally the same as in England, 
and the trust will not be executed.* 

66. Lawful and Unlawful Trusts. 
Trusts may either be lawful or unlawful. A lawful trust is 

use of a, feme sole not in -contempla- * Denton v. Denton, 17 Md. 403; 
tion of marriage; and it was held Slevin v. Brown, 32 Mo. 176; Rice 
that, as the separate iise was void, v. Burnett, 1 Speer's Eq. Rep. 586; 
the trust fell to the- ground in spite of Perry on Trusts, § 303. 
the -fact that the trustees had active ^ Stanley v. Colt, 5 Wall. 119, 
duties to perform. Consult, also, 168; Leggett v. Perkins, 2 Comst. 
Yarnall's Appeal; 70 Pa. 335; Dod- 297; Morton v. Barrett, 22 Me. 261; 
son ». Ball, 60 Pa. 492; Tucker's Ap- Exeter v. Odiorne, 1 N. H. 232; Ash- 
peal, 75 Pa. 354; and Megargee v. burst v. Given, 5 W. & S. 327; Chapin 
Naglee, 64 Pa. 216. v. Universalist Soc, 8 Gray, 580; 

' Per Dana, C. J., iiL Thatcher v. Kidwell v. Godfrey, 14 Haw. 138; 

Omans, 3 Pick. 528. Davis v. Harrison, 240 Fed. 9^; 

UGreenleaf's Cruise on Real Prop. Chicago R. R. Co. v. Wmslow, 216 

353, note; Perry on Trusts, § 302. \ ^f- ^ ^f^^ *« "f ™it ^?d 

» 19 Mo. 147. See, also. Price v. ^f^' f"^ "^.^^ ^Z . 'T? 
„. ' \„ „ , x^ ,»„ ^ II the rents and profits of an estate 

Sisson, 13 N. J. Eq.m; Croxall v. ^ ^^^ ^^ ^^^.^^ ^^^^^ Wagstaif t,. 

Shererd, 5 Wall. 282; Jackson v. g^j^h, 9 Ves.~520; Perry on Trusts, 

Myers, 3 Johns. 396; and Jackson j.305; Hil} on Trustees, 233. 

s. Gary, 16 Johns. 302. ' , 



104 trusts; their general nature. [part i. 

one which is created for some fair and hcinest purpose recog- 
nized by law; such as for the payment of debts, for a married 
woman, for a proper charity, or the like. Trusts are unlawful 
when they are created for some object which is in contraven- 
tion of public policy, or in violation of statutes. Thus a trust 
for a vicious or immoral purpose would be void at common 
law, because it is against pubUc propriety and policy. So 
trusts in violation of the statutes of mortmain, of the stat- 
utes in regard to aliens, or of the law against accumulation, 
or the creation of perpetuities, are also bad.^ Equity, while 
it creates a new title, viz., the trust, will not uphold it for 
the purpose of violating the law.^ 

57, Executed and Executory Trusts, 

Trusts are also either executed or executory. These terms 
have been already defined.' The test, according to Lord 
St. Leonards, is this: Has the testator been what is called, 
and very properly called, his own conveyancer? Has he left it 
to the court to make out from general expressions what his 
intention is; or has he so defined that intention that you have 
nothing to do but to take that which he has given to you 
and to convert them into legal estates? * 

In an executed trust the instrument must be interpreted 
according to the rules of law, which are, in general, the sarhe 
for equitable as for legal estates, although by such interpreta- 
tion the intention may be defeated. Thus, if an estate is 
given to A. and his heirs, in trust for B., for life, With re- 
,mainder to the heirs of B., the interest which B. will take 
will be construed, under the rule in Shelly's case, to be a fee.* 

' It would be impossible in a work * Egerton v. Brownlow, 4 H. L. Cas. 
like tl)e present to notice these stat- 210; Saokville-West v. Holmesdale, 
utes in detail — they vary in different L. R. 4 H. L. 565; Tillinghast ». Cog- 
states. See Perry on Trusts, . chap, geshall, 7 R. I. 383; Gaylord v. La 
XIII. Fayette, 115 Ind. 423; Cornwell v. 

'See Bacon on Uses, 9; Servis «>; Orton, 126 Mo. 355; Glenbrchy v.' 

Nelson, 1 McCart. ,94; Perry on Bosville, I Lead. Cas. Eq. 1, and 

Trusts, § 21. See, however, Baker v. notes. 

Williamson, 4 Pa. 456, and Tritt v. 'See Wright v. Pearson, 1 Eden, 

Crotzer, 13 Pa. 451. 119; Austen v. Taylor, 1 Eden, 361; 

• Sujrra, Introduction, chap. II, Jones v. Morgan, 1 Bro. C. 206; Jei^ 

p. 31. voise V. Duke of Northumberland, 1 



CH. I.] ;rRusTs; their general nature. 105 

But, if the instrument were designed to be merely a minute 
or draft of a scheme for settUng an estate, the same provir 
sion would be construed as indicating an intention to give B. 
an estate for life only, and that the persons designated as 
heirs should take by purchase. When, therefore, the formal 
instrument, by w;hich the minute is to be carried out, comes 
to be drawh, a court of equity will see that a settlement is 
made which will in due form of legal conveyancing effectuate 
the intention of the creator of the trust — that is, the convey- 
ance will be drawn in such a way that B. will take but a 
Ufe estate, and the parties intended to be described by the 
word "heirs," will take, as purchasers in the remainder.^ 

The distinction between executed and executory trusts was 
once much shaken by the decision of Lord Hardwicke, in 
BagshaW v. Spencer;^ but. that learned chancellor subse- 
quently receded from his position,' and the difference be- 
tween the two classes of trusts is now well settled, both in 
England and America.* 

■ In ascertaining the intention in cases of executory trusts, it 
must be remembered that in marriage articles there is air- 
ways supposed to be a design to benefit the issue of the 'pro- 
posed marriage; but no such intention is presumed to exist 
in regard to wills. A chancellor, therefore, in decreeing a 
settlenaent in conformity with marriage articles, will ailw^ys 
take care that the issue are provided for; but no such care 
will be taken in the case of wills, unless in obedience to sortie 
intention expressed in the will.^ As to what will be sufficient 

J. & W. 539; Price v. Sisson, 13 N. J. land, 1 J. & W. 570; Hooker v. Mon- 

Eq. 168; Depnison w. Goehring, 7 tague, 123 N. C. 154. 
Pa. lV7. ' '2 Atk. 577; 1 Ves. Sr. 142, 152. 

' Sackville-West v. Holmesdale, ' Exel v. Wallace, 2 Ves. Sr. 323. 
L. R. 4 H. L. 586; Wood v. Burnham, * Dennison ti. Goehring', 7 Pa. 177; 

6 Paige, 513; Porter v. Doby, 2 Rich. Wood v. Burnham, 6 Paige, 518'; 26 

Bq. 49; Saunders v. Edwards, 2 Jon. Wend. 9; Home v. Lyetli, 4 H. & J. 

Eq. 134; Glenorchy v. Bosville, 1 434; Garner v. Garner, 1 DesSaus. 

Lead. Gas. Eq. 20, and notes; F'erry 444; Loving v. Hunter, 8 Yferger, 31; 

on Trusts, § 359; Yarnall's Appeal, Edmondson v^ Dyson, 2 Kelly, 307; 

70 Pa. 340; Bacon's Appeal, 67 Pa. Berry v. Williamson, 11 B. Mon. 

604; Neves v. Scott, 9 How. 211; 13 245; In re DougaH, 139 Ga. 351; 

How. 268; Jervoise v. Northumber-" Highland Co. v. Steele, 232 Fed. 26. 

' Blackburn v. Stables, 2 Ves. & B. 



106 trusts; their general nature. [part i. 

evidence of intention, the authorities are not, perhaps, al- 
together uniform.* 

Where, however, the intention of the testator to benefit the 
issue sufficiently appears, the settlement will be made in 
such a manner as to effectuate that intention.*. There is, 
indeed, no difference between the rules applicable to mar- 
riage articles and those in regard to wills, further than this, 
viz.,^ that in the former instruments res ipsa loquitur, .the 
occasion itself testifies what the paramount object of the 
parties must have been.' 

Where there ^re executory trusts of personalty, heirlooms, 
etc., as to which the ordinary limitations 'applicable to real 
estate would defeat, in many instances, the intention of the 
testator, because it would give a tenant in tail (for instance) 
absolute control, equity will see that the limitations are of 
such a nature as to prevent the intention from being de- 
feated.* 

68. Reformation of Executory Instruments Creating 

, Trusts. 

A Kiourt of equity will entertain jurisdiction not only foff 
the purpose of carrying out executory trusts, and seeing that 
the instrument which purports to fulfil the intention of the 
settlor really does so, but also for the purpose of reforming 
conveyances which have been improvidently drawn, and 
by which the objects sought to be reached by the execu- 
tory minute or draft have not been attained. Where such 
an improvident instrument has been executed, equity will, 
as a general rule, reform it, and order it to be redrawn in 
such a way as to effectuate the intention of the parties,* 

369; Sweetapple v. Bindon, 2 Vem. * Stanley t». Leigh, 2 P. Wms. 690; 

S36; Perry on Trusts, §§ 360, 366. Soarsdale v. Curzon, 1 Johns. & H. 

■ See American note to Glenorchy 40; Shelley v. Shelley, L. R. 6 Eq. 

V, Bosville, ut sup. 646. 

• Sackville-West v. Holmesdale, L. ' Warrick v. Warrick, 3 Atk. 293. 

R. 4 H. L. 565. See, also, Neves v. Scott, 9 How. 197; 

•Id. This case contains a very Cause v. Hale, 2 Ired. Eq. 241; Smith 

full discussion of the law upon this v. Maxwell, 1 Hill Eq. 101;'Greea ti. 

point. Rumph, 2 Hill Eq. 1. 



CH. I.] trusts; their general nature. 107 

and the reformation may be decreed even after the death 
of the settlor.^ But where both, articles and settlement 
are previous to the marriage, at a time, when all parties 
are at liberty, the settlement differing from the articles will 
be taken as a new agreement between them, and will con- . 
trol the articles.'' 

If the intention expressed in the minute cannot be carried 
out without violating some statute or policy of the law, 
equity will cai^ry it out as nearly as possible, so as to recon- 
cile, as far as may be, the law and the intention of the settlor.' 

69. Public and Private Trusts. 

In regard to the division of trusts into public and private 
trusts, it will be suflBcient to remark that public trusts are 
such as are constituted for the benefit either of the public 
at large, or of some considerable portion of it answering to 
a particular description; and that private trusts are those 
wherein the beneficial interest is vested absolutely in one or 
more individuals who are, or within a certain time maybe, def- 
: initely asdertained, and who are, therefore, collectively, unless 
under some legal disability, competent to control, modify, 
or determine the trust.* The principal difference in the na- 
ture of the twa kinds of trusts is, that those of a public char- 
acter are not confined withili the limits prescribed for settle- 
ments upon private trusts, but are of a more permanent and 
lasting character. This distinction will be more fully noticed 
when the subject of charitable trusts (which, indeed, have 
been said to be synonymous with public trusts)^ is con- 
sidered.* 

In private trusts the devolution of the cestui que trust's 

' Viant's Settlement, L. R. 18 Eq. Bold ti. Hutchinson, 5 D., M. & G. 

436; Smith i>. Ilifife, L. R. 20 Eql 558. 

666; Cogan v. Duffield, L. R. 20 Eq. » Humbertson v. Humbertson, 1 P. 

789. ' Wma. 632; s. c. 2 Vern. 737; J'rcc. 

• Ugg 0. Goldwire, Caa. t. Talbot, Ch. 455. 

20; 1 Lead. Gas. Eq. 17. Unless it is * Lewin, 18 (12th Eng. ed.). See, 

shown that the discrepancy arose also, Doyle v. Whalen, 87 Maine, 

from a clear mistake, in which case 414^425. 

the aeUlement will be reformed. 'Id. 

: 'Post, chap, V. 



108 trusts; their general natdre. [part i. 

estate, and the incidents of his ownership are, as a general 
rule, the siame as those of legal estates. 

60. Geheral Rules for the Devolution of Equitable Estates^ 

The rules for the descent of equitable estates are the same 
as those which regulate the devolution of legal titles; '^ equi- 
table interests are within the statute of distributions, and, 
it is presumed, fall under the operation of the intestate 
acts throughout the United States.^ Whatever would "be 
the rule of law, if it were a legal estate, is applied in equity 
to a trust estate.' A husband is entitled to an estatp by the 
curtesy in his wife's equitable estates of inheritance, even 
though settled to her separate use; * and he will be entitled, 
at common law, to her equitable personalty, except in so 
far as his rights are controlled by the doctrine of the wife's 
equity to a settlement;^ By an anomalous decision, however, 
a wife in England is not dowable of a trust estate.* But the 
rule in most of the United States appears to be different, 
it having in some states been altered by statute; ' and the. 
point in England has ceased to be of practical importance.* 

Before the statute of uses it had been decided that the 
estate; of the cestui que use was not subject to forfeiture and 
escheat,' but that the feoffee to uses became thereupon the 
absolute owner." After the statute the same rule was ap- 

• Lewih on Trusts (12th Eng. ed.), the husband's title. Cochran v. 

1061; GornweU V. Wulff, 148 Mo. 0'Hern,.4 W. & S. 99; Stokes v. 

542. , ,, McKibbin, 13 Pa. 268; Rigler v. 

' Faries' Appeal, 23 Pa. 29. Cloud, 14 Pa. 363. 

'Burgess v. Wheate, 1. Black. R. eJBill on Trustees, 405; 4 Kent's 

155, 161; Croxall w. Shererd, 5 Wall. Com. 30; posi, chap. IV. 

281; Price v. Sisson, 13 N. J. Eq. « D'Aroy ». Blake, 2 Sch. & Lef. 

174; Cornwell v. Ofton, 126 Mo. 387; Dixon ». Saville, 1 Bro. Ch. 326; 

355. Mayburry v. Brieh, 15 Pefc 38. 

IRoberts v. .Dixwell, 1 Atk. 607; ' Williams on Real Prop. 214, note; 

Morgan v. Morgan, 5 Madd. 408; Fol- Shoemaker v. Walker, 2 S. & R. 554; ' 

lett V. Tyall, 14 Sim. 125; Appleton - Smiley t>. Wright, 2 Ohio (O. S.), 507; 

V. Rowley, L. R. 2 Eq. 139; Cooper Crabb v. Pratt, 15 Ala. 843. 

V. MacDonald, L. R. 7 Ch. D. 288; » By the passage of the Dower Act, 

Lewin on Trusts (12th Eng. ed.), 9, 3 & 4 Will. IV., c. 105. 

236, 899; Ege v. Medlar", 82 Pa, 86; "See Burgess" v. Wheate, 1 Eden, 

Dubs V. Dubs, 31 Pa. 149. Unless 199. 
there is a clear intention to exclude 



CH. I,] trusts; their general NATtJRB. 109 

plied to trusts.* By a subsequent statute the estate of the 
cestui que trust was forfeited for treason; ^ but upon forfeit- 
ure for felony or escheat the trustee took the estate discharged 
of the trust.* Now, by the Intestates Estates Act of 1884 
all estates or interests in realty, whether legal or equitable, 
in respect of which any person dies without an heir and 
intestate, are subject to the law of escheat, in like manner as 
if the estate or interest were legal. ^ But this rule does not 
apply to chattels nor to an equity of redemption. 

In the United States the opinion is that the state would 
take both real and personal property as ultimus haeres.^ If 
the legal title to real estate cannot .be taken by an aliesn, the 
beneficial ownership cannot be enjoyed by hitn,* 

61. Alienation of Equitable Estates; Liability for Debts. 

The right of alienation, by deed and will, attaches to 
equitable estates, and any restrictions upon that .right are 
invalid; and moreover the incident of involuntary alienation, 
or, in other words, the liability of the estate to be taken in 
execution for the debts of the beneficial owner, also applies 
to such estates. There may, indeed, be a limitation over 
upon the bankruptcy or insolvency of the cestui que trust, 
or upon the happening of' any. event whereby the property 
may belong to some other person; and such limitations are 
of frequent .occurrence.^ But the cestui que trust cannot 
hold the property for the purposes of enjoyment freed from 

' Att.-Gen. v. Sands, 1 Hale P. C. note d; Leggett v. Dubois, 5 Paige, 

249. 114; Taylor v. Benham, 5 How. 270. 

2 33 Hen. VIII., c. 20. See/also, Sharp i). St. Sauveur, L. R. 7 

»Att,-Gen. «. Sands; Burgess v. Ch. 352; overruling Rittson». Stordy, 

Wheate (supra); In re Lashmar, 3 Sm. & Giff. 230; and approving Bar- 

[1891], 1 Ch. 258. See also Onslow v. row v. Wadkin, 24 Beav. 1. 

Wallis, 1 Mac. & G. 506; Sweeting v, ' See Williams on Real Prop. 87, 

Sweeting, 33 L. J. Ch. 211. and notes. And; of course, there 

* Stat. 47 and 48 Vict., c. 71, § 4. may be a limitation so expressed that 

» See Matthews v. Ward, 10 Gill & no equitable or legal estate vests m 

J. 454. the beneficiary, in which case he has 

« Du Hoiirnelin v. Sheldon, 1 Beav. nothing which he can alienate. See 

79; 4 M. & C. 525; Atkins v. Kron, 5 Hanna's Extr. v. Raypolds, 16 U. S. 

Ired, Eq. 207; Huljbard v. Goodwin, App. 6797-701. 

3 Leigh, 492; 2 Kent's Com. *62, 



110 trusts; THEIR GENERAL NATUKE. [PART I. 

the duty of applying it in discharge of his obligations.' It 
is a settled rule of law that the beneficial interest of the 
cestui que trust, whatever it may be, is Eable for the pay- 
ment of his debts, and it cannot be so fenced about by in- 
hibitions and restrictions as to secure to it the inconsistent 
characteristics of right and enjoyment to the beneficiary and 
immunity from his creditors. A condition precedent that the 
provision shall not vest until his debts are paid' and a condi- 
tion subsequent that it shall be divested and forfeited by his in- 
solvency, with a limitation over to another person, are valid, 
and the law will give them full effect. Beyond this, protec- 
tion from the claims of creditors is not allowed to go.^ This 
is the general rule throughout the United States and in Eng- 
land. In some of the states Of the Union, however, a different 
doctrine has been held.' Thus, in Pennsylvania, it is now 
firmly established by many authorities that when a gift in 
trust is made for life, coupled with a proviso exempting the 
estate otthe cestui que trust from liability for his debts, and 
where he is excluded from the control of the property,* such 
proviso will be good without any limitation over upon in- 
solvency.^ And this end may be accomplished hot only by 

• Dumpor's Case, 1 Sm. Lead. Cas. executed by the statute of uses, and 

119, Judge Hare's note. See, also, could be levied upon under" ordinary 

Tirst -Nat. Bank v. Dougan, 250 process. 

Fed. 510; Horberry v. Harding, 10 ' De Vaughn v. Hays, 140 Ga. 208; 

Lea (Tenn.), 392; Warner e. Rice, White v. Williams, 172 III. App. 630; 

66 Md. 436; UUman v. Cameron, Hoffman v. Beltzhoover, 71 W. Va. 

186 N. Y. 339. A judgment creditor 72. 

is entitled to the proportion of income * See Adams's Eq. 43. There can 

from a trust estate beyond that which be no valid spendthrift trust where 

is necessary for the suitable support the beneficiary is also the trustee and 

and maintenance of the cestui que has full power to deal with the prop- 

trust. Magner v. Crooks, 139 Cal. erty at his pleasure. Hahn «. Hutch- 

640. inson, 159 Pa. 133-141; Morgan's 

^Nicholso. Levy, 5Wall.441;Hal- Estate, 223 Pa. 228, but see Fox's 

lett V. Thompson, 5 Paige, 583; Dick Estate, 264 Pa. 478; Hance's Estate, 

V. Pitchford, 1 Dev. & Bat. (Eq.) 480; 69 Pa. Sup. 432. 
Blackstone Bank v. Davis, 21 Pick. ' Fisher v. Taylor, 2 Rawle, 33; 

42; Easterly v. Keney, 36 Conn. 22; Ashhurst v. Given, S W. & S.'323; 

Taylor v. Harwell, 65 Ala. 1 (compare Vaux v. Parke, 7 W. & S. 19; Brown 

Jones V. Reese, Id. 134); Brandon v. v. WiUiamson's Ex'rs, 36 Pa. 338; 

Robinson, 18 Ves. 429. See Hiitch- Rees v. Livingston, 41 Pa. 113; 

ins t). Heywopd, 50 N. H. 491, where StiU v. Spear, 45 Pa. 168; Rife v. 

it was held that a resulting trust was Geyer, 59 Pa. 395; Shankland's Ap- 



CH. I.] 



trusts; their general nature. 



Ill 



a proviso which expressly exempts the trust property from 
the debts of the beneficiary, but also by a direction that the 
income shall be disbursed for the benefit of the cestui que 
trust only to the extent which the trustee may in his dis- 
cretion deem advisable; for to subject, the income so be- 
queathed to execution at the suit of a creditor would end the 
discretion of the trustee and defeat the intent of the testator.' 
And this irule seems also to exist in Maine, Connecticut, 
Massachusetts, Virgihia, Mississippi, Kentucky, Missouri, 
Alabama, and Maryland.^ But where there is a limitation 
over upon insolvency, the mere fact that the trustees have a 
discretion to apply the income to the benefit of the insolvent 
will not affect the validity of the limitation over or subject the 
funds which the trustees, in exercising their discretion, may 
see fit to give to the beneficiary to the payment of his debts. 
This proposition was laid down in the Supreme Court of the 



peal, 47 Pa. 113; Girard Life Ins. Co. 
i. Chambers, 46 Pa. 485; Overman's 
Appeal, 88 Pa. 276; Stambaugh's Es- 
tate, 135 Pa. 585; Mehafley's Estate, 
139 Pa. 276; Baker's Estate, 159 Pa. 
518; Wanner v. Snyder, 177 Pa. 208; 
Winthrop Co. v. Clinton, 196 Pa. 472. 
But a person sui juris cannot settle 
the entire estate on himself, free from 
liability for debts. Maokason's Ap- 
peal, 42 Pa. 330; Benedict v. Benedict, 
261 Pa. 117; Menken v. Brinkley, 
94 Tenn. 721; Sargent v. Burdett, 
96 Ga. Ill; Williams o. Kemper, 99 
Minn. 301; Hale v. Bowler, 215 Mass. 
254. The rule in Mackason's Ap- 
peal, however, means only that such 
a trust would not be good as against 
creditors. Patrick v. Bingaman, 2 
Sup. Ct. (Pa.) 118. As against the 
settlor himself it would be good; 
Merriman ti. Munson, 134 Pa. 114; 
Ashhurst's App., 77 Pa. 464. 

' Keyser v. Mitchell, 67 Pa. 473. 
It has recently been held in this 
Btate that under a trust for the sole 



and separate jise of a married wo- 
man, where the instrument provides 
that the income is to be paid into the 
proper (own) hands of the cestui que 
trust upon her own sole receipt, the 
income accrued due, but still remain- 
ing unpaid, cannot be attached in the 
hands of the trustee. Hays's Estate, 
201 Pa. 391. 

" Murphy v. Delano^ 95 Me. 229; 
Mason o. Rhode Island Trust Co., 
78 Conn. 81; Morel v. Comellj 234 
Mass. 563; Markham v. Guwrant, 4 
Leigh, 279; Johnston v. Zane's Trus- 
tees, 11 Grat; 570 (but see Hutchin- 
son V. Maxwdl, 100 Va. 169) ; Leigh v. 
Harrison, 69 Miss. 923; Pope's Ex'rs 
V. Elliott, 8 B. Mon. 56; Hill v. Mcr 
Rae, 27 _Ala. 175; Davidson v. 
Kemper, 79 Ky. 5; Kerens ». Trust 
Co., 283 Mo. 601; and see Genet v. 
Beekman, 45 Barb. 382; and Camp- 
bell V. Foster, 35 N. Y. 361; Jackson 
Square Association v. Bartlett, 95 
Md. 661. 



112 trusts; their general nature. - [part i. 

United States in the case of Nichols v. Eaton,>' where the 
facts were as follows: A testatrix devised her estate, real and 
personal, to trustees, upon a trust to pay the income to her 
children equally during their lives, subject to the condi- 
tions — 1st, that in case of the alienation of such income by 
either of her sons, or in case of the bankruptcy or insolveiicy 
of either of them, or if from any other cause the income could 
no longer be personally enjoyed by either of them, the trust 
as to such son should instantly cease and determine, and 
the income to which he would be otherwise entitled should be 
paid to his wife and children, if any, and, if none, to go back to 
the corpus of his estate; 2d, that the trustees shoUld have 
power in their discretion, but without its being in any way 
obligatory upon them, to transfer absolutely to either of 
said children one-half of the trust fund from whence his or 
her share of the income under the preceding trust should 
arise, the trusts as to suDh portion of the estate thereupon 
to cease- and determine; 3d, that in case of the cessation of 
the income by any cause except death, as before provided 
(as by baiikruptcy, insolvency, or other cause preventing 
either of them from personally enjoying his or her share 
of the income), the trustees might, in their discretion, pay 
to or apply for either of the sons, or for the use of either of 
the sons, orWs wife and family, so much of the income as he 
would have been entitled to if the forfeiture had not happened. 
One of the sons who was unmarried and without children 
became a bankrupt, and on a bill filed by the assignee in 
bankruptcy\to subject his portion of the income to the claims 
of his creditors, it was held that the devise was not void, 
as in fraud of creditors, and that the relief prayed for would 
not be granted — and this, although a large sum of money 
($25,000), had been paid by the trustee to the bankrupt 
since the bankruptcy. In this case the English authorities 
were reviewed and the conclusion reached that there was 
nothing in them to forbid such a trust, and that there was 

'91 U. S. 716; Shelton v. King, U. S. 429; Hull v. Loan Co.. 245 
229 U. S. 90; Eaton w. Trust Co., 240 U. S. 312. ■ 



CH. I.] ' trusts; their general nature. 113 

nothing upon principle, or in general policy of the law to 
prevent it from being carried out.^ 

62. Exceptions to the General Rules of Devolution of 
Equitable Estates. 

Certain-exceptions to the rules above stated, in regard to 
the devolution of trust estates, and the powers^of the cestui 
que trust, exist in the case of trusts for married women, and 
will be noticed when that particular class of trusts comes 
under consideration. 

Another exception formerly existed in England in rela- 
tion to attendant terms, trusts of which, though of chattel 
interests, followed the descent of the inheritance which they 
were designed to protect. But the doctrine of attendant 
terms is now obsolete in England, and was never of any 
practical importance in this country. 

Trust estates also follow the law of legal estates as to the in- 
. juries which may affect them and the consequences of these in- 
juries.. Thus, although the terms "seisin" and disseisin are 
not strictly applicable to equitable estates, a court of equity 
regards the actual receipt of rents and profits under the 
equitable title as equivalent to seisin at law, and an adverse 
taking of the rents and profits as amounting to an ouster.^ 
Moreover, if such adverse enjoyment of the equitable estate 
continues for twenty years, it would, , by analogy to" the 
statutes of limitations applicable to legal titles, bar any as- 
sertion by the cestui que trust of his right in equity.' 

1 See, also, Keyeer v. Mitchell, 67 Drake v. Wild, 65 Vt. 611; Rochefou- 

Pa. 473. . I cauldw. Boustead [1897], 1 Ch: 196- 

' Lewin on Trusts (12th Eng. ed.) 208; Soar v. Ashwell [1893], 2 Q. B. 

933. 391; Lamberton v. Youmans, 84 

» Merriam 0. Hassam, 14 Allen, 516; Minn. 109; Curtis v. Lakin, 94 Fed. 
Watkins t>. Specht, 7 Coldw. 585; 251; but a party to an ordinary 
Perry on Trusts, §§ 855, 860, 864; business transaction will not Be con- 
Story's Eq. Jurisp., § 975. The stat- verted into a trustee and deprived 
ute will run from the time the trustee of the Statute of Limitations as a 
assumes a hostile attitude, but not if defence — not available to a trustee, 
the cestui que trust were in ignorance. Henry e. Hammond (1913>, 2 K, li. 



Lindsley t^, Dodd, 53 N. J. Eq. 86} 515. 



CHAPTER II 

EXPRESS TRUSTS ; AND HEREIN OF VOLTTNTART DECLARATIONS 
IN TRUST, OP PRECATORY TRUSTS, AND OP POWERS IN TRUST. 



63. Trusts created by direct fiduciary 
expressions; Trusts averable at 
Common Law. 

Statute of Frauds. 

Language by which a Trust may 
be created. 
66. Vohmtary dispositions in Trust; 
Milroy v. Lord; Ex Parte Pye. 

General re3ult of the authorities; 
Donaldson v. Donaldson; Rich- 
ards V. Delbridge. 

Voluntary Assignments for the 
benefit of Creditors. y 

69. Meritorious Consideration; Ellis 
V. Nimmo. 



64 
65 



67 



68, 



70. Donatio mortis causa. 

71. Trusts create by Precatory 

Words; English doctrine. 

72. Doctrine on this subject in the 

United States generally; in 
Pennsylvania and Connecticut. 

73. What precatory words will create 

a Trust. 

74. Are such words prima, facie im- 

perative? 

75. Certainty of the object is an ele- 

ment for consideration. 

76. Certainty of the subject. 

77. Powers in Trust; Salushury v. 

Deriton. 



63. Trusts created by direct fiduciary expressions; Trusts 
Averable at Common Law. 

Express tnists,^ being those which are created by the lan- 
guage of the parties, may, it is obvious, arise either by di- 
rect fiduciary expressions whereby the relationship of trustee 
and cestui que trust is distinctly established, or by expressions 
of a more uncertain and equivocal character which might 
not in the opinion of a layman be considered as indicating 
an intention to create a trust, but which have been construed 
by a series of judicial decisions to be effective in so doing. 

Before, however, considering the question as to what 



' "If there is created in express 
terms, whether written or verbal, a 
trust, and a person is in terms nomi- 
nated to Ije the trustee of that trust, a 
court of equity, upon proof of such 
facts, will not allow him to vouch a 

114 



statute of limitations against a breach 
of that trust. Such a trust ia in 
equity called an express trust." Per 
Lord Esher, M. R., in Soar v. Ashwell, 
[1893], 2 Q. B. 393. 



CH. II.] ^ EXPRESS TRUSTS. 116 

language is necessary to create a trust, it will be proper to 
premise that at common law trusts, both of real and personal 
property, could be created by parol.* A trust of realty, like a 
use, was in technical language "averable;" that is, it could 
be created by word of mouth.* The better opinion is, how- 
ever, that this is only true of those cases in which the legal 
estate could be created by feoffment, where (of course) no 
writing was necessary. But when a deed was requisite for 
the conveyance of the legal estate (as in a covenant to stand 
seised to uses), there uses and trusts were not averable, but 
could be created only in the same manner as legal estates.' 
In Connecticut it has been held that trusts were not averable 
at common law; * but the weight of American authority is 

decidedly the other way.^ 

I 
64. The Statute of Frauds. 

The Statute of Fratids (29 Car. II., c. 3) changed the rule 
in regard to real estate, and enacted (in the 7th section) 
that "all declarations or creations of trusts, or confidences 
of any lands, tenements, or hereditaments, shall be mani- 
fested and proved by some writeing signed by the partie who 
is by law enabled to declare such trust or by his last will 
in writeing or else they shall be utterly void and of none 
effect." * An assignment of a trust of realty must also be 
in writing.'' 

This statute applies to chattels real as well as to freehold 
estates; * though^not to mere personal rights concerning land, 
such as mortgages and charges.' And where land has been 

' See Tritt v. Crotzer, 13 Pa. 451; • The "party who by law is entitled 

Owens t>. Williams, 130 N. C. 165. to declare such trust" is the bene- 

• Lewin on Trust? (12th Eng. ed.), ficial owner only. Kronheim v. John- 
53; Perry on Trusts, § 75; Fordyce v. son, 7 Ch. D. 60; Tiemey t». Wood, 19 
Willis, 3 Bro. Ch. 587. Beav. 330. 

» Gilbert on Uses, 270. ' See 29 Car. II., §§ 7, 8, 9. . 

* Dean v. Dean, 6 Conn. 285. : ' Skett v. Whitmore, Freem. 280; 
' Fleming ii. Donahde, 5 Ohio, 257; -Riddle ti. Emerson, 1 Vern. l08; and 

Miller v. Thatcher, 9 Tex. 485; Os- see Hutchins v. Lee, 1 Atk. 447; Bel- 

terman v. Baldwin, 6 Wall. 116; Shel- lasis f.^Comptont 2 Vern. 294. 

ton V. Shelton, 68 N. C. 292; Murphy • Benbow v. Townsend, 1 M. & K. 

V. Hubert, 7 Pa. 420; Anding ». Davis, 606; Bellasis v. Compton, 2 Vern. 2M. 

?8 Miss, 574, §ee Perry on Trusts, § 8^. 



116 EXPEESS TRUSTS. [PAKT I, 

conveyed on a parol trust, and is afterwards converted into 
money, a subsequent parol declaration of trust will be suffi- 
cient.' 

It is to be observed that the statute does not require trusts 
of realty to be created, but only to be manifested and proved 
by writing.^ The distinction is of practical importance, be- 
cause a subsequent written acknowledgment of a trust will 
cause the interest to relate back to the date of its original 
creation, so as to bring it (for example) within the operation 
of a will of the cestui que, trust executed before the written 
acknowledgment, but after the verbal creation.* 

This statute has been re-enacted in most of the United 
States ; in some of which, however, the language of the stat- 
ute has been somewhat varied. Thus' in Maine trusts must 
be "created- or declared by some writing." ^ In Indiana 
"no trust ... shall be created, unless in writing signed by 
the party creating the same." ^ In Illinois and Missouri 
"declarations or creations of trusts must be manifested and 
proved" in writing.^ The statutes of Vermont, California 
and Massachusetts provide that trusts shall be "created 
or declared" in writing,^ while the Georgia statute provides 
that "All express trusts must be created or -declared in 
writii^g." * , 

In a feVp states this section of the Statute of Frauds has 
not been re-enacted in ^ny form and it is not necessary-for 
an express trust to be in writing.^ 

It is considered, howfever, by a learned writer, that this 

' Maffitt's Adm'r u. Rynd, 69 Pa. '« Annotated Statutes, §5875, 

386; Thomas j>. Merry, 113 Ind. 83; Marie Church v. Trinity Church; 

.State w. Roudebush, 114 Ind. 347. 253 III. 21; Rev. Stats., §2868; 

' See language of Chancellor Kent Hunter v. Briggs, 254 Mo. 63. 

in.Movan k Hays, 1 Johns. Ch. 342. 'Sullivan v. Haskin, 70 Vt. 490; 

'Ambrose u. Ambrose, 1 P. Wms. Keown v, Keown,. 257 Fed. 853 

322. See, also, Forster v. Hale, 3 (Cal. Civ. Code, §852); Thacher 

Ves. Jr. 696; 5 Ves. Jr. 315; Barrell v. v. Churchill, 118 Mass. 108. 

Joy, 16Mass.223;Saffordu.Rantoul,' « Ga. Code, §3733; Wilder v. 

12 Pick. 233, and Sime v. Howard, 4 Wilder, 138 Ga. 573; Oglesby v. 

Nev. . 483. Wilmerding, 149 Ga. 45; Hardy v. 

* Rev. Stats. (1903), Ch. 78, § 14, Hardy, 149 Ga. 371. 

p. 659; Brackenbury v. Hod^in, » Delawace, Piferson v. Pierson. 5 

116 Me. 399. Del. Ch. 11; Kentucky, Best v. 

'Burn's Ann. Statutes (1908), Melson, 183 Ky. 785; North Caro- 

§4012; Nesbitt ». Stevens, 161 Ind. lina, Wilson v. Jones, 176 N. C. 205; 

519. Robertson v. Bemis, 226 Fed. 834; 



CH. II.] 



EXPRESS TRUSTS. 



117 



variation of language does not produce any substantial 
difference in the effect of the statutes, but that under all of 
them it will be sufficient if the trust is proved by some, writ- 
ing, although executed after its creation.^ 

I^ersonal chattels are not within the Statute of Erauds; and 
trusts of them may be proved by parol, ^ Implied trusts are 
expressly excepted from the operation of the statutes in 
most of the states. ^ 

It is not essential that the writing by which the trust is 
"manifested and proved" should be in any particular form. 
It may, be couched ia any language which is sufficiently ex- 
pressive of an intention to create a, trust. Thus, SbnotA bene ti,t 
the foot of a deed,' or a mere letter or, memorandmn will be 
enough.* The writing, however, must declare, with suffir 
cient certainiy what the trust is.^ 

An answer in chancery admitting.the trust will be sufficient 
to take it out of the statute;* but the better opitiion seems to 



Ohio, Harvey v. Gardner, 41 Ohio 
St. 642; Tennessee, Tennessee Ins. 
Co. V. Waller, 116 Tenn. 1; City of 
Fort Worth v. Natural Park Bank, 
261 Fed. 817; Virginia, Yoiing o. 
Holland, 117 Va. 433; West Virgima, 
Swick V. Reese, 62 W. Va. 557. 

• Perry on Trusts, §81; Sime v. 
Howard, 4 Nev. 482;- Faxon' ». Fol- 
vey, 110 Mass. 392; Salisbury v. 
Clarke, 61 Vt. 453; Wolford v. Fam- 
ham, 44 • Minn. 161; Houston v. 
Farris,.93.Ala. 587; Silvers «.. Pot- 
ter, 48 N. J. Eq. 539; Templeton v. 
Brown, 86 Tenn. 50; Roche v. 
Roche, 286 111. 336; Beachey v. 
Heiple, 130 Md. feS; "Bender vT' 
Bender, 281 Mo. 473; Lanigan v. 
Miles, 102 Wash. 82;,Brackenbury 
V. Hodgkiri, 116 Me. 399. ' ' 

* M'Fadden v. Jenkynfi^ 1 Hare, 
451; Moore v. Campbell, 113 Ala. 
687; Souza v. Bank, 36 Cal. A. 384; 
Bay Co. v. Baile, 73 Fla. 1120; 
Eaton V. Barnes, 121 Ga.' 548; 
Barnes v. Barnes, 282 111. 593; 
Richards v: Wdlson, 185 Ind. 335; 
Chase v. Gardner, 228 Mass. '533; 
Northrip v. Burge, 225 Mo. 641; 



Washington's Estate, 220 Pa. 204; 
Bbyje v. Dinsdale, 45 Utah, 112. 

'Ivory V. Burns, 56 Pa. 300. 

* Dale 0. Hamilton, 2 Phillips, 266; 
Forster ». Hale/ 3 Vfes. - Jr. 696;-5 
Ves. Jr. 308; Raybold v. Raybold, 20 
Pa. 308; Maccubbin v. Cromwell, 
7 Gill & J. 164; Packard v. Putiiain, 
57 N. H. 43; Throop if. Uatoh, 3 
Abb. Pr. R. 29; Hutchins »., Van 
Vechten, 140 N. Y. 115; P;;att v. 
Ayre, '3 Charid. 265; Whetsler v. 
Sprague, 224 111. 461; St^arr ». Starr, 
I Ohio, 321; Reid ». Reid, 12 Rich. 
Eq. 213; Snader v: SUngluff, 95 Md. 
356; Lynch v. Rooney,,1^2 Cal. 279; 
Thorp V. Lurid, 227 Mass. 474; 
Ranney v. Byers, 219 Pa. 332. 

' Steere v. Steere, 5 Johns. CH. 1; 
Smith ».' Matthews, 3 D. F. &J. 
139; Cook V. Barr, 44 N. Y. 161'; 
Taft !). Dimond, 16 R. I. 584; Yerkes 
w. Perrin's Est., 71 Mich. 567; Renz k 
Stoll, 94 Mich. 377; Salisbury v: 
Clarke, 61 Vt. 459; Martin v. Baird, 
175 Pa. 540. 

' Maccubbin v. Cromwell^ 7 Gill & 
J. 164; Cozine v. Graham, 2 Paige 
(Ch.), 177; Nab v. Nab, 10 Mod. 404; 



118 EXFEESS TRTTSTS. [PAET I.\ 

be that this will not be the rule if the defendant chooses to in- 
sist upon the benefit of the statute.^ If the answer denies 
the agreement u^on which the trust is based, it need not 
expressly set up the statute, or (in other words) take the 
defence that the agreement was in parol.^ 

A trust may be created by will; but, to be valid, the will 
must be duly executed. A writing which purports to be a 
testamenta^-y i paper, if not properly executed to ta,ke effect 
as a will, cannot be relied upon as a memorandum to satisfy 
the statute.' 

And so, where the creator of a trust can only act under cer- 
, tain formalities, those formalities must be observed. Thus, 
the declaration of a trust respecting realty by a married 
woman, must, when the statute requires that her convey- 
ances shall be separately acknowledged, be made out in 
some other mode than by her admission or acknowledgment, 
orally or in writing. It must be accompanied with such a 
certificate of separate examination and voluntary acknowl- 
edgment as is required by the statute in case of her deed.* 

66. Language by which a trust may be created. 

Having premised thus much concerning the instrument 
which is needed for a valid trust, we must now consider 
what language should be used in order that a trustjnay be 
created. 

"To constitute a valid tmst," it has been said,^ "undoikbt- 
edly three circvunstances must concur: sufficient words to 
raise it, a definite subject, and a certain or ascertained ob- 
ject;" and to these requisites may be added another, 

Patton V. Chamberlain, 44 Mich. 5; Lewin on Trusts, chap. V., sec. 3; 

McVay v. McVay, 43 N. J. Eq. 47; Long's Appeal, 86 Pa. 196; Bryan 

Kauffman v. Kauffman, 266 Pa. 275; v. Bigelow, 77 Conn. 604. 

Mussey v. Shaw, 274 111. ^51. * Graham v. Long, 65 Pa. 387, per 

• Dean v. Dean, 9 N. J. Eq. 425; Sharswood, J.; Tatge v. Tatge, 34 

Whiting V. Gould, 2 Wis. 552; Perry Minn. 272. 

on Trusts, § ^5. ' By Sir Wm. Grant, in Cruwys v. 

2 Wolf V. Corby, 30 Md. 360; On- Colman, 9 Ves. 323. See, also, 

■tario Bank v. Root, 3 Paige (Ch.), Knight v. Boughton, 11 CI. & Fin. 

478; Billingslea v. Ward, 33 Md. 513, and Malim w. Keighley, 2 Ves. Jr! 

51; Allen v. Chambers, 4 Ired. Eq. 335; Filkins v. Severn, 127 la. 738' 

125. Chicago Ry. Co. v. Des Moinea 

" Perry on Trusts, § 89 to § 94; Ry. Co., 254 U. S. 208. 



CH. II.] EXPKES^ TRUSTS. 119 

> 

viz., that the terms of the trust should be sufficiently 
declared.^ 

The t)recision with which it is necessary to define the 
subject-matter, and the object of the trust, will be noticed 
when we come to consider powers in trust, and that class of 
expressions which are known as precatory words. Putting 
these aside for the present, it may be said that there must, 
in general, be sufficient words to create a tru^t; bu,t that no 
particular form of expression is necessary.^ It will be enough 
if there be a complete' intention, expressed with sufficient 
clearness. ' 

The intention must be a complete one. Thus, where a 
party at the time he pxirchased a certain tract of land execu- 
ted an instrument by which it was set forth that the purchase 
was "intended" for another, it was held that the mere fact 
,that the purchaser "intended" to give the property to the 
alleged beneficiary could not have the effect of raising a trust.' 
A mere inchoate and executory design is not enough,* and 
unless there is some distinct equity (as fraud, for example), 
it cannot be enforced.^ The intention must be plainly mani- 
fested, and not derived from loose and equivocal expressions 
of parties made at different times and upon different occa- 
sions.* But any words which indicate with sufficient cer- 

» Knight V. Bou^hton, 11 Clark & Sullivan v. Sullivan, 161 N. Y. 554; 

' Fin. 613; Pitts v. Weakley, 155 Mo. Providence Inst, for Savings v. Car- 

109; Campbell v. Brown, 129 Mass. penter, 18 R. 1. 287. 

23; and Hellman ti. McWUliams, 70 * Bayley v. Boulcott, 4 Russ. 345; 

Cal. 449; Taylor v. Welch, 168 Mo. Harrison v. McMennomy, 2 Edw. Ch. 

App. 232. 251. See, aJso, Kilpin v. Kilpin, 1 

« Krebs's Estate, 184 Pa. 222. M. & K. 620; Williard v. Williard, 56 

» Hays V. Quay, 68 Pa. 263. "Con- Pa. 119; Dellinger's Appeal, 71 Pa. 

ceding the existence of a bona fide in- 425; Perry on Trusts, §§ 77; Spivey 

tention to create the alleged trust, c Harrell, 101 N. C. 48; Hamer v. 

that intention was never ip fact ex- Sid way, 57 Hun, 229; Skeen v. Mar- 

ecuted, either by signing the declara- riott, 22 Utah, 73. 

tion above quoted, by change of ' Donahoe v. Conrahy, 2 Jon. & 

possession, or in any other manner." Lat. 694; Wolff's Appeal, 123 Pa. 451. 

Girard Trust Co. t>. Mellor, 156 Pa. « Slocum v. Marshall, 2 Wash. C. C. 

689-590. See, also, Sheffield v. 398; Steere w. Steere, 5 Johns. Ch. 1; 

Parker, 158 Mass. 330; Cunning- Mercer w. Stark, lSm.& Marsh. (Ch.) 

bun ». Davenport, 147 N. Y. 43; 479; Harris ti. Barnett, 3 Grat. 339; 



120 



EXPRESS TRUSTS. 



[part I. 



tainty a purpose to create a tryst will be effective in so 
doing.' 

It is nqt necessary that the terms "trust" and "trustee" 
should be used." There is no magic in these words/ and any 
others' which show that the donee was not intended to take 
beneficially will affect his conscience with a trust.^ 

The declaration of trust may be contained in a different 
instrument from that by which the estate is vested in the 
trustee; * but the instruments must be related to and con- 
nected with each other.* It is not necessary that the writ- 
ing declaring and inanifesting the existence of the trust be 



Barkley v. Lane, 6 Bush (Ky.), 687; 
Levi V. Evans, 18 U. S. App. 293-303; 
Pitts V. Weakley, 155 Mo. 109; Skeen 
1). Marriott, 22 Utah, 73. 

» Fisher v. Fields, 10 Johns. 495 
Carpenter v. Cushman, 105 Mass 
419; Nonnan v. Burnett, 25 Miss. 183 
Porter v. The Bank of Rutland, 19 Vt 
410; Brown v. Combs, 5 Dutch. 36 
Luco V. De Tore, 91 Cal. 405; Mo- 
Auley's Estate, 184 Pa. 124; Krank- 
el's Ex'x V. Krankel, 104 Ky. 745; 
Delta Land Co. v. Benton, 171 111. 
App. 635; Striker v. Daly, 223 N. Y. 
468; Anderson v. Harrington, 163 
N. C. 140; Howison v. Baird, 145 
Ala. 683.. ■ 

^Sharpless v. Welsh, 4 Dall. 261; 
Sheets Estate, 52 Pa. 266; Sohulot 
V. Trust Co., 270 Pa. 363; Packard 
V. Old Col. R..R., 168 Mass. 96; Col- 
lins V. Lewis, 60 N. J. Eq. 488; Mat- 
ter of Griffin, 167 N. Y. 71; Estate 
of Reith, 144 Cal. 314; see Lewin 
(10th Eng. ed.), 161. Though their 
absence is ar circumstance to be at- 
tended to. King V. Denison, 1 V. 
& B. 273. See, also, Porter v. Bank 
of Rutland, 19 Vt. 410; Fisher v. 
Fields, 10 Johns. 495; Gordon v. 
Green, 10 Ga. 534; Norman v. 
Burnett, 25 Miss. 183. On the 
other hand, the words "trust" and 
"trustee" wiU not necessarily create 
a trust. Freedley's Appeal, 60 
Pa. 344; Brown v. Bombs, 2 Dutch. 



- 36; Hart v. Seymour, 147 111. 609; 
Towar v. Hale, 46 Barbi 361; Den v. 
Hay, 21 N. J. Law, 174; Austin v. 
Shaw, 10 Allen, 552. See, also, 
Seldon's Appeal, 31 Conn. 548; 
Eldridge v. The See Yup Co., 17 
Cal. 44; Att. Gen. v. Marrimack 
Manuf. Co., 14 Gray, 612; Richard- 
son V. Inglesby, 13 Rich. Eq. 59; 
Baker v. Baker, 123 Md.'32. 
' Sheets Estate, 52 Pa. 266. 

* Crockett v. Crockett, 1 Hare, 451; 
Bibby v. Thompson, 23 Beav. 646; 
Jubber v. Jubber, 9 Sun. 503; Pierce 
V. McKeehan, 3 W. &S. 283; Raikes 
V. Ward, 1 Hare, 445; Inderwick v. 
Inderwick, 13 Sim. 652; Aynesworth 
V. Haldeman, 2 Duvall, 571; Day v. 
Roth, 18 N. Y. 453; Hirsh ». Auer, 
146 N. Y. 19; Blackburn v. Black- 
bum, 109 N. C. 488; Roche v. Georges 
Extr., 93 Ky. 609; Cathcart v. Ndr 
son's Admr., 70 Vt. 317. 

* Inchiquin v. French, 1 Cox, 1-; 
Wood V. Cox, 2 M. & Cr. 684; Stubbs 
V. Sargon, 2 Keen, 255; Smith v. 
AttersoU, 1 Russ. 266; or in a nota 
bene at the foot of a deed; Ivory v. 
Burns, 56 Pa. 300; Ellison v. Ganiard, 
167 Ind. 471; Chicago Ry. Co. v. 
Des Moines Ry. Co., 254 U. S. 208. 

' McCreary v. Gewinner, 103 Ga. 
528; Nesbitt v. Stevens, 161 Ind. 
519; Tenney v. Simpson, 37 Kan. 
579; Gates v. Paul, 117 Wis. 170; 
Loring v. Palmer, 118 U. S. 321; 



GH. II.] EXPRESS TRUSTS. 121 

executed contemporaneously with the transfer of the legal 
title and the creation of the trust but it is sufficient if exe- 
cuted subsequently thereto.^ If an absolute conveyance Is 
made, no sizbseqiient declaration can deprive the grantee of 
his beneficial interest." 

As'to the quantity of the estate which the cestui que trust 
is to take, it is only necessary that the intention upon the 
subject should be clearly expressed; and it is not necessary 
thait the technical wprds required in the limitation of legal 
estates should be used. Thus, an equitable ffee may be 
created without the use of the word "heirs," and a fee tail 
without the use of "heirs of the body," ^ provided always 
that the intention to give a fee sufficiently appears. Where 
a trust is created by & devise by which the fee is given to the 
trustee, the cestui que trust will be entitled to the beneficial 
ownership in fee,, without an express limitation to his heirs, 
because it is supposed that the testator intended that the 
beneficial interest should exhaust the entire legal estate.* 
But in a deed the rule is otherwise.^ 

Where technical words are used, however, they must be 
taken in their legal and technical sense,* except in certain 
cases of executory trusts, which have been already noticed. 

Woolfit V. Histed, 208 Mich. 308; Karsner, 72 Ala. 110; Lawson v. 

Richards v. Wilson, 185 Ind. 335. Lawson, 117 III. 98; Green v. Gates, 

1 McGlellan v. McGlellan, 65 Me. 73 Mo. 122; Hansen tj. Berthelsen, 

500; McGandless v. Warner, 26 W. 19 Neb. 433; Allen v. Withrow, 110. 

Va.754;BarreUw. Joy, 16Mass.221; U. S. 119. 

Atwood V. Trust Go., 275 Fed. 521. ' Shep, Touch., by Preston, 106; 

^Adlington ». .Cann, 3 Afk. 145; Lewin on Trusts (12th Eng.' ed.), 

Crabb v. Grabb, 1 M. & K. 511; Kil- 124; Fisher v. Fields, 10 Johns.' S05; 

pin V. Kilpin, 1 M. & K. 520, 532. Packard y. Old Golony R. R., 168 

See, also, Briggs v. Penny, 3 McN. Mass. 96.' 

& G, 546; Johnson .«. Ball, 5 DeG. * Moore v. Gleghom, 10 Beav. 423; 

&Sm. 85; Dawson ». Dawson, Cheves on appeal, 12 Jurist, 591; Knight w. 

Eq. (S. C.) 148; Johnson v. Glarkson, Selby, 3 Man, & Gran. 92; Doe li. 

3 Rich. Eq. 305; Wallgrave v. Tebbs, Cafe, 7 Exch. 675; Watkins v. Wes- 

2 K. & J: 313; Tee v. Ferris, 2 K. & J. ton, 32 Beav. 238; Perry on Trusts, 

357;Russellw. Jackson, 10 Hare, 204; §337. 

Lomax v. Ripley, 3 3ni. & Giff. 48; * Holliday v, Overton, 14 Beav. 

Brown v. BrOwn, 12 Md. 87; JTritt v. 467; 15 Beav. 480; Whiston's Settle- 

Crotzer, 13 Pa. 451; Ivory v. Burns, ment [1894], 1 Gh. 661. 

56 Pa. 303; Bennett v. Fulmar, 49 « Wright v. Pearson, 1 Eden, 125; 

Pa. 155; Chapman v. Wilbur, 3 Or. Glenorchy v, Bosville, Gas. t. Talb. 

326; Perry on Trusts, § 77; Kelly v. 19. , , 



122 EXPRESS TRUSTS. [PART I. 

66. Voluntary dispositions in trust; Milroy v. Lord; Ex 
parte Pye. ' 

It has been said that in order to create a valid trust there 
must not be merelyan inchoate intention, but that the trans- 
action must be complete. This rule, it must be remembered, 
applies mpre particularly .to trusts which are created by 
voluntary dispositions, and which may be conveniently con- 
sidered in this place. 

For a trust may arise either out of a contract or out of a 
gift, and the distinction which it is desirable to remember is 
this; viz., that in trusts which grow out of contracts, and 
which are therefore based upon a consideration, it is not nec- 
essary that the intention should have proceeded to the same 
extent as is required in trusts which are purely voluntary.' 
And this is only an appUcation of the rule which exists at 
common law in reference to the distinction between contracts 
and gifts, as the former rests in fieri, whereas a gift can only 
be effectual after the intention to make it has been followed 
by aqtual delivery of possession or some equivalent act. "A 
true and proper gift or grant is always accompanied with 
delivery of possession, and takes effect immediately. * * * 
But if the^ft does not take effect by deUvery of immediate 
possession, it is then not properly a gift, but a contract." * 
The common-law rule, therefore, in reference to the transfer ■ 
of legal titles, has been followed in equity as to the creation 
of equitable estates; and trusts which are purely voluntary — 
that is, those which do not depend upon or grow out of a 
consideration — ^must, to be effectually created, be accom- 
panied by the dehvery of the subject of the trust, or by some 
act so strongly indicative of the donor's intention as to be 
tantamount to such delivery.^ An imperfect conveyance, 

' See Ownes v. Ownes, 23 N. J. Eq. the seal will import a consideration. 

62; Perry on Trusts, § 95. Sherk v. Endress, 3 W. & S. 256; 

'2 Black. Com. 441. See 2 Kent's Yard ». Patton, 13 Pa. 285; Mack's 

Com. 438. It will be remembered Appeal, 68 Pa. 233. 
that even at law a voluntary in- » See Cox v. Hill, 6 Md. 274; Tay- 

strument, although executory in its lor t). StapleS; 8 R. \ 170, 176; Otis 

character, will be supported as a gift v. Beckwith, 49 111. 121, 128; Wad- 

of the money, ij Uhe under seal, for hams t>. Gay, 73 111. 416; Troiigh'a 



CH. n.l EXPRESS TRUSTS.- 123 

which is also merely voluntary, will not be aided or enforced 
in equity.* The settlor must do all m his power, that the 
nature of the property will admit of, to carry out his inten- 
tion.* Lord Justice" T'umer, in Milroy v. Lord,' said that a 
voluntary settlement could be made in one of three ways: 
first, by direct transfer or assignment to the "donee; second, 
by assigiunent to a trustee accompanied by an actual trans- 
fer of the legal. estate, if that is in the settlor; and third, by a 
declaration that the settlor holds in trust for the donee.* 
Ex parte Pye^ is an old and leading authority upon this 
branch of the law, and is an illustration of the last of the 
three classes of cases mentioned in Milroy v. Lord. In that 
case M. wrote a letter in which he requested his attorney in 
France to purchase an annuity for the benefit of a certain 
lady. The purchase was made, but the annuity was taken 
in the name of the writer of the letter, who afterwards sent 
a letter of attorney to transfer the same to the name of the 
intended dbnee. The donor died before the transfer was 
made, but the news of his death did not reach the attorney 
until after the transfer. Whether the transfer was good 
according-to the law of France was doubtful; but it was held 
that, without determining that question, there had been a 
complete declaration of trust by the donor. 

So in Crawford's Appeal,* where a husband credited his 
wife with a sum of money on his books, it was held that this 
was an effective declaration of trust in the wife's favor. And 

Estate, 75 Pa. 115; Zimmerman v. 'See Girard Trust Co. v. Melloop, 

Streeper, 75 Pa. 147; Kulp v. March, 156\ Pa. 579. An intended but im- 

181 Pa. 627; Delta Land Co. v. Ben- perfect . gift cannot be enforced as 

ton, 171 111. App. 635. a trust. Brown v. Crafts, 98 Me. 

• Minturn v. Seymour, 4 Johns. Ch. 40; Ashman's Estate, 223 Pa. 543; 

498; Acker v. Phoenix, 4 Paige, 305; Citizens' Bank v. McKenna, 168 

Dawson v. Dawson, 1 Dev. Eq. 93; Mo. App. 254. 

Caldwell v. WiUiams, 1 Bailey Eq. » 4 DeG., F. & J. 274. 

175; Crompton v. Vaaser, 19 Ala. 259 ; * See the opinion of Vice-Chancellor 

Hayes v. Kershow, 1 Sand. Ch. Wood in Donaldson v. Donaldson, 

258; Reed v. Vannorsdale, 2 Leigh, Kay, 711. 

569; Holland i». Hensley, 4 Clark, 222; > 18 Vesey Jr. 140. 

Pringle i>. Pringle, 59 Pa. 281; Mat- »61 Pa. 52. 
thews ti. Hoagland, 48 N. J. Eq. 
466. . 



124 EXPRESS TRUSTS. [PABT I. 

a deposit of money in bank to the credit of another will have 
the same effect.' 

Ellison V. Ellison ^ may, also, be referred to as a leading 
authority upon tjiis subject. "I take the distinction to be>" 
said Lord Eldon in that case, " that if you want the assistance 
of the court to^ constitute you cestui que trust, and the in- 
strument is voluntary, you shall not .have that assistance 
for the purpose of constituting you cestui que trust; as upon 
a covenant to transfer stock, etc., if it rests in covenant, and 
is purely voluntary, this court will not execute that volimtary 
covenant; but if the party has completely transferred stock, 
etc., though it is voluntary, yet, the legal-conveyance being 
effectually made, the equitable interest will be enforced by 
this court.'" ^ The doctrine is the same as that which has 
been laid down by Lord Thiu"low in Colman «. Sartel,* where 
it was held that when a party comes into equity to raise an 
interest by way of trust, there must be a valuable orj at 
least, a meritorious consideration; and that a mere voluntary 
covenant to convey would not be enforced. 

1 Conn. River Saving Bk. v. Albee, 23 Ala. 219; Greenfield's Estate, 14 

64'Vt. 571; Baker v. Baker, 123 Md. Pa. 489; Reese v. Ruth, 13 S. & R.. 

32; Matter of Totten, 179 N. Y. 434; Delamater's Estate, 1 Whart.. 

112; Soott V. Harbeck, 49 Hun, 292; 362; Souverbye v. Arden, 1 Johns. 

Sayre v. Weil, 94 Ala. 466; Hoboken Ch. 240; Bunn v. Winthrop, 1 Johns. 

Bank v. Schwoon, 62 N.'J. Eq. 503; Ch. 337; Phipard ». Phipard, 55 

Peck V. Scofield, 186 Mass. 108; Hun, 433; Clarke ». Lett, 11 ID. 

Merigan v. McGonigle, 205 Pa. 321; 105; Vreeland v. Van Horn, 17 N. J. 

CoUidge V. Knight, 194 Mass. 546, Eq. 139; Stone v. Kmg, 7 R. I. 358; 

(where it was held that no trust had Ray w, Simmons, 11 R. I. 268; Adams 
been created); Parkman v. Savings , w. Adami, 21 Wall. 185; Ritter's Ap- 

Bank, 161 Mass. 218, and Casteel peal, .59 Pa. 9; Carhart's AppeW, 

V. Flint, 112 la. 92 (where the trust 78 Pa. 119; Paul v. Paul, 20 Ch. D. 

was rebutted by parol evidence). 742; Chihiers v. Race, 196 111. 71; 

Cazallis v. Ingraham, 119 Me. 240; In re Leigh, 186 Iowa, 931; In re 

Walso V. Lattemer, 143 Minn. 364. Gurletz, 105 N. Y. Misc. 30; Am- , 

' 6 Vesey Jr. 656. brosius v. Ambrosius, 239 Fed. 475; 

' 6 Vesey Jr. 662. See also, Stone Paine v. Paine, 28 R. I. 307. 

V. Hackett, 12 Gray, 227; Wright v. * 1 Ves. Jr. 50. See, also, Trough's 

Miller,4Seld.9;Cromptpn«.Vasser, Estate, 75 Pa. 115; Appeal of 

19 Ala. 266; Andrews v. Hobson, Waynesburg College, 111 Pa. 130. 



CH. II.] EXPRESS TRUSTS. • 125 

Where, however, a consideration exists, the case is dif- 
ferent. ^ A contract then arises which will be enforced by 
the courts, and equitable interests flowing therefrom will, 
as between the immediate parties, be as much protected as 
legal rights. Where the legal or equitable rights of third 
parties intervene, the rule may be varied.^ 

67. General Result of the Authorities; Donaldson v. Don- 
aldson; Richards v. Delbridge. 

The cases upon the subject of voluntary defclarations of 
trusts have been quite numerous, and it is impossible) in a 
treatise like the present, to do more than indicate their 
general results, without discussing the distinctions estab- 
lished by particular authorities. 

When a settlor is possessed of the legal title to the subject- 
matter of the settlement, he may create a valid trust thereof, 
either by a declaration that he holds the property in trust, 
or by a transfer of the legal title to the property to a third 
party upon certain trusts. In other words, he may con- 
stitute either himself or another person the trustee. If lie 
makes himself the trustee, no transfer of the subject-matter 
is necessary. If he makes a third party trustee, he must 
transfer to him the subject of the trust in such a mode a,s 
will be effectual to pass the legal title.' :But if there is a 
mere intention to convey the property upon trusts, this will 
not be sufficient if the proper steps are not taken for, the 
purpose of making a valid transfer of the legal title ,to the 
intended trustee.^ Such was the case of Milroy- v. 

» See Lightner's Appeal, 82 Pa. State v. Ellison, 282 Mo. 660; Mc- 

301. See, also, the language of C. J. Cartney w. Ridgway, 160 fll, 129^- 

Gibson in Kisler v. Kisler, 2 Watts, 156; Nanney v. Morgan, S7 Ch. D. 

325, as to the distinction between a 352. See In fe Rich^rils, 36 Ch. D. 
parol declaration of trust, and a parol ^ 541, — a case where the donor gave 

declaration which is not a trust, but her own promissory note in favor of 

a contract. the donee to a third party, to be 

2 See post, Part II., chap, on Notice. handed tew the" donee on the donor's 

' Dickerson's Appeal, 115 Pa. 198, death, 
citing the text; Smith's Estate, 144 * Lloyd v. Brooks, 34 Md. 33; 

Pa. 428; Gihnor's Estate, 158 Pa. 193; Swan v. Prick, 34 Md. 143; Flanders 

Eshbach's Estate, 197 Pa. 157; v. Blandy, 45 Ohio, 108; Citizens' 

Robinson v. Crutcher, 277 Mo. 1; Bank y. McKenna, 168 Mo. App. 254^ 



126 



EXPRESS TRUSTS. 



[part I. 



Lord,' where a deed of assignment of stock, unaccompanied, 
however, by a transfer of the stock, was held ineffectual to 
create a trust. The case^of Donaldson v. Donaldson ^ may 
be referred to as an authority upon the creation of. voluntary 
trusts by a declaration that the settlor thereby constitutes 
himself the trustee, in which case no assignment of the 
legal title is required.' 

It may be observed that, according to some English au- 
thorities, an assignment which is ineffectual to pass ihe legal 
title may yet take effect as a declaration of trust ; so that the 
result of the abortive attempt of the assignor to convey the 
legal title would be, under those authorities, to constitute 
him a trustee of that title for the party designed to be 
benefited.* But these decisions have not been approved in 
later cases,* and the true doctrine would seem to be laid 
dowfi in Milroy v. Lord, as stated above. 



• 4 DeG., F. & J. 264. See, also, 
Jones V. Lock, 35 L. J. Ch. 117; 11 
Jur. N. 8. 913; L. R. 1 Ch. 28; For- 
rest V. Forrest, 34 L. J. Ch. 428; 
Scales V. Maude, 6 DeG., M. & G. 43; 
Hendersoh v. Henderson, 21 Mo. 379; 
Gilchrist t>. Stevenson, 9 Barbr' 9, 
and Cressman's Appeal, 42 Pa. 147. 
See, however, Huntly v. Huntly, 8 
Ired. Eq. 250. 

» Kay ,-^11. See, also, Vandenberg 
1). Palmer, 4 K. & J. 204; Harris 
Banking Co. w." Miller, 190 Mo. 640, 
and Atkins v. Atkins, 70 Vt. 565. 
A voluntary settlement may be good, 
although the grantor retain the in- 
strument. The rule is, that where 
such a settlement is fairly made, the 
mere fact that the grantor retains 
possession of the deed, unaccom- 
panied by other circumstances, will 
not affect the validity ot the settle- 
ment. Souverbye v. Arden, 1 Johns. 
Ch. 256; Clavering v. Clavering, 2 
Vern. 473; 7 Bro. P. C. 400; Bough- 
ton II. ' Boughton, 1 Atk. 625; John- 
toi\ «. Smith, 1 Ves. 314; Bunn v. 



Winthrop, 1 Johns. Ch. 329; Adams 
V. Adams, 21 Wall. 185. 

' Culberston v. Witbeck, 127* U. S. 
326; Leeper v. Taylor, 111 Mo. 312; 
Tyler v. Tyler, 25 111. App. 333; 
Janes ». Falk,, 50 N. J. Eq. 468; 
Krankel's Ex'x v. Krankel, 104 
Ky. 745; Collins v. Lewis, 60 N. J. 
Eq. 488, and Collins v. Steuart, 58 
N. J. Eq. 392. If a settler designs to 
effect a vaUd settlement in a cer- 
tain mode, but the settlement' fails 
to take effect by reason of an incom- 
plete disposition, it cannot take effect 
in another mode not intended by the 
settler. Milroy w. Lord, 8 Jur. n. a. 
806; Phipard v. Phipard, 55 Hun, 
433; Jones o. Byland, 23 Wkly. Law 
Bui. 151. 

^ ' Richardson v. Richardson, L. R. 
3 Eq. 692; Morgan i>. Malleson, L. R. 
10 Eq. 475. See, also, Huntly v. 
Huntly, 8 Ired. Eq. 250; Bond o. 
Bunting, 78 Pa. 210, and Bank ». 
Holland, 99 Va, 495. 

' Warriner'ti. Rogers, L. R. 16 Eq. 
340; Richards v. Delbrid^e, L. R. 19 



CH. ir.] 



EXPRESS TRUSTS. 



127 



Where a settlor is not possessed of the legal present title, 
but has only an equitable or reversionary interest in the 
subject, a trust may be created either by a declaration that 
the settlor holds in trust, or by an assignment upon trusts.' 
The first of these methods stands upon the same grounds as 
declarations of trust of property .of which the legal title is in 
the settlor. An assignment, howeyer, of an equitable interest 
upon a voluntary trust differs from a like assignment of a 
purely legal interest, in that no further formalities are nec- 
essary in order to complete the transaction, as, the legal title 
not being in the assignor, he can, of course, take no steps to 
complete its transfer. A valid voluntary trust of an eq- 
uitable or r^ersionary interest may, therefore, be created 
by a simple^assignment.^ In such a case, however, the in- 



Eq. 11: Moore ii. Moore, L: R. 18 Eq. 
474; Heartley v. Nicholson, L. R. 
19 Eq. 233; In re Breton's Estate, 
17 Ch. D. 420; Wadd t>. Hazle- 
ton, 137 N. Y. 215; Pollock on Con- 
tracts, 206, 207 (8th Eng. ed.); Elli- 
son V. Ellison, 1 Lead. Cas. Eq. 262 
(4th Eng. ed.). If the settlement is 
made in stich a form as to be sub- 
, stantially a testamentary disposition, 
it will not be treated as an absolute 
conveyance in trust, but will be rev- 
ocable during the lifetime of the 
settlor. Turner v. Scott, 51 Pa. 126; 
Frederick's Appeal, 52 Pa. 338; 
Rick's App., 105 Pa. 528;Chestnut St. 
Nat. Bk. V. Fidelity Ins. Co., 186 Pa. 
339; Sturgeon ». Steven^, 186 Pa. 363. 
And in People's Savings Bank v. 
Webb, 21 R. I. 218, it was held that 
the alleged settlor was a competent 
witness to prove that there was no 
intention to create a trust — this being 
a case of a deposit in a'i>ank in the 
name of a father as trustee for the 
■on. But an absolute deed is not 
rendered revocable by the mere fact 
that posse8.<)ion and control are re- 
served to the grantor during his life, 
or because it incorporates a will. 



See Dawson v. Dawson, Rice's Eq. 
260; Robey v. Hannon, 6 Gill, 464; 
Mayor of Baltimore v. Williams, 
6 Md. 235; Craven v. Winter, 38 la. 
479. See, also, Rynd v. Baker, 193 
Pa. 491, where Frederick's Appeal 
and the other cases (cited supra) are 
distinguished. ~ Clay v, Layton, 134 
Mich. 317. 

^ Collinson v. Patrick, 2 Keen, 123; 
Tierney V. Wood, 19 Beav. 330. , 

' See Kekewich v. Manning, 1 
DeG., M. & G. 176, where the con- 
flict of authority between Sloan v. 
Cadogan, Sug. V. & P. App. 26, and 
Fortesoue v. Barnett, 3 My. & K. 36, 
on the one hand, and Edwards v. 
Jones, 1 My. & Cr. 226, and Meek v: 
Kettlewell, 1 Hare, 464; 1 Phill. 
Chanc. Rep. 342, on the other, was 
settled in favor of the former class of 
cases. See, also, Huggin's Est., 204 
Pa. 167; Otis v. Beckwith, 49 111. 121. 
The decision in Meek ti. Kettlewell, 
1 Hare, 464; 1 Phill. Chanc. Rep. 
342, that the voluntary assignment 
of an expectancy, even under seal, 
will not be enforced by a court of 
equity, has not been overruled by 
Kekewich v. Manning; In rt Ellea* 



128 EXPEESS TRtrSTS. ^ [PART I. 

strument must be an assignment; in other words, it must 
purport to give the thing itself. Consequently, where the 
document did not profess to be a tl-ansf er of the reversionary 
interest of the settlor in certain stock, but only to create a 
charge upon the same, the gift failed.^ 

It was at one time supposed that, in the assignments of 
equitable interests, notice to the trustees was necessary;' 
Biit this does not now seem to be requisite;^ for, if the assign- 
ment is a complete one, withip. the principle of Kekewich y. 
Maiming, no notice is necessary.* 

It sometimes happens that the voluntary settlor himself 
seeks the aid of a court of equity to have the settlement re- 
voked; and the question has then arisen whethw in such 
settlements powers of revocation ought not to be inserted, 
and how iar a voluntary irrevocable settlement, in the ab- 
sence of any motive for an irrevocable gift, can be sustained. 
There has been some fluctuation of authority upon this point; 
but the true rule seems to be that the absence of a^power of 
revocation is nothing more than a circumstance to be taken 
into account, and is of more or less weight according to the 
other circmnstances of the case.^ Where' the intent to make 
an irrevocable gift is perfectly apparent,® or where even in 
the absence pf such a clear intent^ a sufficient motive (such 
as protection against the grantor's own extravagance, or 
the like) for making such a gift exists, the settlement cannot 
be disturbed.' _ But where the dehberate intent does not 

borough, Towry Law v. Bume [1903], ' Merriman v. Munson, 134 Pa. 
1 Ch. 697, and this view seems to be 114; Reidy v. Small, 154 Pa. 505; Ed- 
taken in Lennig's Appeal, 182 Pa. wardsa. Edwards, 170 Pa. 212; Stook- 
485. , , ett V. Ryan, 176 Pa. 71; Neiil v. 
' In re Earl of Lucan, 45 Ch. D. Black, 177 Pa. 83; Carney v. Carney, 
470. 196 Pa. 34; Fidelity ITitle Co. v. 
^Meefcw. Kettlewell, lU mpi Graham, 262 Pa". 273. See, also, 
» Way's Trusts, 2 DeG. J. & Sm. Ford v. Ford, 193 Pa. 530, for a casti 
-365. in which a decree was entered modi- 
* In re Patrick [1891], 1 Ch. 82. fying the absolute character of the 
'Valter v. Blar^^ka, 195 111. 610; deed of gift. JCellett v. Sumner, 
Whiteside v. Verity, 269 Fed. 230. 15 Haw. 76; CrumUsh v. Security 
'See remarks of Lopes, L. J., in Trust Co., 8 Del. Ch. 395; Dayton 
Tudker t>. Bennett, 38 Ch. D. 17 and v. Stewart, 99 Md. 643; Carroll v. 
18. Smith, 99 Md. 653; Cazallis ». 



CH. II.] EXPRESS TRUSTS. 129 

appear, and no motive exists, the absence of a power of 
revocation is prima fade evidence of a mistake.* It need 
scarcely be added that the mere "Reservation of a right of 
revocation is not inconsistent with a declaration of trust.* 

68. Voluntary Assignments for the benefit of Creditors. 

Voluntaiy assigimaents to trustees for the benefit of cred- 
itors have been held to constitute an exception to the general 
rules by which the creation of voluntary trusts is governed; 
inasmuch as,- after such an assignment, but before it is com- 
municated to the creditors, it is considered revocable at the 
option of Ihe grantor.* It \jas, indeedj said by Sir L. Shad- 
well, V. C, in Garrard v. Lord Lauderdale,^ that such a trust 
was revocable by the assignor even after it had been com- 
municated to the creditors; but this doctrine has not met 
the approval of subsequent decisions, and cannot be con- 
sidered sound. ^ The doctrine in Walwyn v. Coutts, when 
properly considered, appears to be based upon the ground 
that in such cases the assignee for the benefit of creditors is 
not strictly a trustee,, but a mere agent of the debtor; and 
that if the true relation of the parties is that of principal 
and agent, the ordinary rule in such cases, viz., that the 
authority of the agent is revocable until acted upon, must 

Ingraham, 119 Me. 240; thorp v. McWmiama, 70 Cal. 449; In re 

Lund, 227 Mass. 474; Chanfrau Thurston, 154 Mass. 596. But see 

V. Alexander, 185 Fed. 537. Sargent v. Baldwin, 60 Vt. -17; 

1 See Hall v. Hall, L. R. 8 Ch. 430; Howard v. Howard, 60 Vt. 362; Love 

Garnsey v. Miindy, 24 N. J. Eq. 243; v. Love, 17 Haw. 207; Anderson v. 

Russell's Appeal, 75 Pa. 269; Mis- Kemper, 116 Ky. 339. 

key's Appeal, 107 Pa. 628; Bristor p. * Lines v. Lines, 142 Pa. 149 

Tasker, 135 Pa. 119; Doran o. Mo- Noble v. Learned, 153 Gal. 245 

Conlogiie, 150 Pa. 115;. Tokfer v. Lewis v. Cumutt, 130 Iowa, 423 

Toker, 3 D. J. & S. 487. See, also, Cemetery v. Trust Ck)., 152 Ky. 797 

Villers p. Beaumont, 1 Vem. 100; MoEvoy v. Bank, 201 Mass. 50 

Naldred v. Gilham, 1 P. Wms. 577; Springs v. Hopkins; 171 N. C.'486. 

Hiiguenin ». Baseley, 14 Ves. 300; » Walwyn v. Coutts, 3 Mer, 707; 3 

Petre v. Espinasse, 2 M. & K. 496; Sim. 14; Ellis ». Cross (1915), 2 K. B. 

Bill «. Cureton, 2 M. & K. 503; Hast- 654. 

ings V. Orde, 11 Sim. 205; PhilUps v. *3 Sim. 1. 

Mullings,,L. R. 7 Ch. 244; Cooke v. « Acton v. Woodgate, 2 M...& K. 

Limotte, 15 B'eav. 234; Wollaston 495; Harlandc. Binks, 15 Q. B. 713. 

V. Tribe, L. R. 9 Eq. 44; Hellman v. See Johns v, James, 8 Ch. D. 744, 

9 



13(1 EXPRESS TRUSTS. [PART I. 

apply. ^ The English rule would now seem to be that it is a 
question of intention; and that where the contents of the 
deed and the surrounding circumstances, as recited in it, 
show an intention to create a trust, the rule in Qarrard v. 
Lord Lauderdale does not apply." In America the rule in 
Walwyn v. ■ Coutts, and particularly the dictum in Garrard 
V. Lord Lauderdale, hkve not been approved. The assent 
of the creditor is presumed to be given to- a trust created for 
his benefit, and after such assent the trust is irrevocable by 
the grantor.! - 

Even in England, if a creditor is created a trustee, and the 
fact of the execution of the deed is communicated to him, 
the trust will thenceforward be irrevocable.* 

If the trust for payment of debts is to take effect after the 
death of the assignor, an element of bounty is introduced 
which will take the case out of the ruling in Walwyn -i;. 
Coutts." ^ 

69. Meritorious Consideration;- Ellis v. Nimmo. 

Before leaving the subject of the creation of trusts by a 
voluntary disposition, it will be desirable to say a few words 

•See Bill t).,Cureton, 2 M. & K. 12 Pa. 164; Lead. Cas. E'q. 327;. 

5ll; and Lord Cranworth in Synnot Perry on Trusts, § 593. But the 

V. Simpson, 5 H. L. Cas. 133, 134. presumption of the creditor's assent 

- 2 See the remarks of Vaughan WU- may be rebutted by conduct. Gijjir 

liams, J., in New v. Hunting [1897], son v. Rees, 50 111. 383. 

1 Q. B. 607, 615-616. In this case * Siggers v. Evans, 32 Eng. L. & 
the instrument was executed to Eq. 139. 

make good losses consequent upon * Synnot v. Simpson, 5 H. L". Cas. 

breaches of trust, and it, was held 141; though see the remarks of 

irrevocable. Lord St. Leonards in his dissenting 

' Tennant v. Stoney, 1 Rich. Eq. opinion, p. 152. In this connection 

223; NicoU v. Mumford, 4 Johns. it may be noted that the^eclaratioh 

Ch. R. 523; Pingree v. Comstock, of a dividend by a corporation does 

18 Pick. 46; Fellows v. Greenleaf, riot create an irrevocable trust; but 

43 N. H. 421; Ingram «. Kirkpatriok, such ^claration may be rescinded 

6 Ired. Eq. 463; Weir v. Tannehill, at any time before the date at which 

2 Yerg. 57; Banner v. Brewer, 69 the> dividend is payable. Ford v. 
Ala. 191; Pillsbury v. Kingon, 33 Easthampton Rubber Thread Co., 
N. J. Eq. 287; Watson v. Bagaley, 158 Maaa. 84. 



CH. II,] EXPRESS TRtfSTS. 131 

upon the question as to whether the meritorious considera- 
tion of blood is to be plaqed upon the same footing as one 
which is purely voluntary, so far -as regards the disposition 
of courts of equity to enforce any right or supposed right 
foimded thereon. 

It was decided by Sugden,-when Lord Chancellor of 
Ireland, that the meritorious consideration of blood was 
sufficient to set the court in motion for the purpose of en- 
forcing an executory trust. ^ But this decision was not 
followed in England; and the doctrine must be considered as 
settled the other way, so far asthat country is concei^ied.'' 

In the United Statps the authorities are not altogether 
harmonious. The^ English rule has been followed in Penn- 
sylvania,^ New York, and New Jersey.^ In South Carolina 
and Missouri it -is said that a voluntary declaration will be 
sufficient if under seal.* But the general tendency of the 
American authorities is the other way.* 

70. Donatio Mortis Causar 

In connection with the subject of voluntary declarations 
in trust it seems proper to notice gifts mortis causa. A gift 
may, it is plain, be either absolute or conditional;. and this 
distinction naay exist as well in gifts which take effect by 
means of volimtary declarations in trust as in those where 
the legal title passes. A well-recognized class of conditional, 
gifts is that of donationes mortis causa; and the question 
naturally arises. What are the rules which are to be applied 

1 Ellis ». Nimmo, LI. «& Gqold, 333. * Matter of James, 146 N. Y. 78; 

='See Holloway v. Headington, 8 Landon^p. Hutton, 50 N. J, Eq. 

Sim. 324; Jefferys v. Jefferys, 1 Cr. & 500; Yarborough v. West, 10 Ga. 471; 

Ph. 138; Dillon v. Goppin, My. & Or. Gaylord v. City, 115 Ind. 423.' 
647. In Moore v. Crofton, 3 Jones * Caldwell ». Williams, 1 Bailey Eq. 

& Lat. 442, Sir E. Sugden was com- 175; Leeperw. Taylor, 111 Mo. 312. 
peUed to abandon the position he had ' Mclntire v. Hughes, 4 Bibb, 186 

taken in EUis v. Nimmo. Mahan v. Mahan, 7 B. Mon. 579 

'Kennedy v. Ware, 1 Pa. 445; Bright v. Bright, 8 B. Mon. 197 

Campbell's Estate, 7 Pa. 100; though Perry on Trusts, §109; Waterman 

see Dennison v. Goehring, 7 Pa. 175, v. Morgan, 114 Ind. 237; McHugh v. 

and Bond v. Bunting, 78 Pa. 210. O'Connor, 91 Ala. 432. 



132 EXPKESS TRUSTS. [PART I. 

when a gift of this sort is made in such a way that the legal 
title. does not pass, but the equitable title may? A satis- 
factory answer to this question may be found by referring 
to a modern Englisl> decision. 

A gift mortis causa is one made in expectation of death; 
when a person gives upoircondition that, if any fatality 
happen to him, the receiver shall keep the article; but that 
if the donor should survive, or if he should change his mind, 
or if thg donee should die first, then the. donor shall have it 
back again. ^ There are ^three essentials to .the donation, 
viz., (1) the gift must be with a view to the donor's death; 
(2) there must be an express or implied intention that the 
gift should only take effect on the donor^s decease by his 
existing disorder; and (3) there must be a delivery of the 
subject-matter of the donation to the donee, or to some one 
on his behalf.^ 

Now, this conditional gift may be made not only by a 
transfer of the legal title to the subject, but by the creation 
of an equitable title in the donee through the medium of a 
voluntary declaration of trust; for it is well settled that there 
may be a valid gift of a ^ose in action (for example), althqugh 
there has been no such' transfer as would pass the title at 
law, if there has been that done which amounts to a declara- 
tion of trust in equity. Thus in the case, jiist cited, of 
" Austin V. Mead {In re Mead) ' it appeared that Mead had 
in his possession two bills of exchange, payable to himself 
or order, and that two days before his death he had handed 
them, unindorsed, to his wife. It was held that this gift was 

■ This is a translation of the defini- an antecedent delivery alio intuitu; 
tion given by Justinian, and is taken , in other words, the intent and the d&- 

from the note to In re Mead, Austin livery need not be contemporaneous. 

V. Mead, in Brett's Leading Cases iu- Cain v. Moon, [1896] 2 Q. B.' 283; 

Equity, 124 (American ed. 212); Johnson o. Colley, 101 Va. 414; 

Beebe v. Coffin, 153 CaF. 174; Cron- In re Liphart, 227 Fed. 135; Davis 

ian !). Bank, 201 Mass. 146; Thomas's v. Kuck, 93 "Minn. 262; Claytor v. 

Admtr. v. Lewis, 89 Va. 1; McCoy Pierson, 55 W. Va. 167. 
V. McCoy, 126 Ky. 783; Foley v. '15 Ch. D. 651; Clement v. 

Harrison, 233 Mo. 460. Cheesman, 27 Ch. D. 631; Debin- 

' Brett's Leading Cases in Equity, son v. Emmons, 158 Mass. 592; Lar- 

iM supra. The requirement as to rabee v. Hasoall, 88 Me. 611; Leyson 

delivery is satisfied if there has been v. Davis, 17 Mont. 220; Funston v. 



CH. n.] EXPRESS TRUSTS. 133 

good. There was, it will be observed, no transfer of the 
legal title to the bills; but there was language coupled with 
conduct, viz., the delivery of the bills, which was equivalent 
to a declaration that the donor was a trustee for the donee, 
and a trust enforceable against the personjal representatives 
of the donor was created. Whether or not such a trust will 
arise in any given case will depend, it is believed, upon the 
rules heretofore stated. 

On the other hand, where the transaction simply amounts 
to a conditional and volimtary promise, it cannot be sustained 
as a gift mortis causa. Therefore, where thfe donor^ hands his 
own cheque or note to the donee, which cheque of note is.not 
payable during the donor's life, it cannot be enforced against 
the executor, for it is simply a promise without considera- 
tion — ^nothing more. In the case already referred to, the 
decedent had handed his wife, in addition to the two bills, 
his own cheque for £500. It was held that thet-e was Tio 
gift of the money. ^ 

It may be added that courts of equity maintain a con- 
current jurisdiction in all cases of such donations where the 
remedy at law- is not adequate or complete. But in such 
cases the jilrisdictibn stands on general grounds, and not 
upon any notion that a donatio mortis causa is from its own 
nature properly cognizable therein.* Of course, where the 
legal title passes, no resort to the doctrine of voluntary dec-, 
laration of trusts is necessary.' 

71. Trusts created by Precatory Words : English doctrine. 

It has been seen, a;lready,that no particular form of lan- 

t 

Twining, 202 Pa. 88, 91; Shugart v. sometimes enforced, see -post, Part 

Shugart, 111 Tenn. 179; Kenistona III., Chap. VI. 

V. Sceva, 54 N. H. 24. ' Upon the general subject see 

1 Austin V. Mead, 15 Ch. D. 651. Ward v. Turner, 1 Lead. Cas. Eq. 
See, also. Matter of James, 146 N. Y. 905, and notes; Yancey v. Fields, 85 
78; Hemphill's Estate, 180 Pa. 87- Va. -756; Flanders v. Blandy, 45 
92, and PuUen v. Placer County Ohio, -108; Hogan v. Sullivan, 114 
Bank, 138 Cal. 169; First Nat. Bank la. 456; Basket v. Haskell, 107 U. S. 
ti.>0'Byme, 177 111. App. 473; Pen- 602; Funston t). Twining, 202 Pa. 88, 
nell V. Ennis, 126 Mo. App. 355. 92; McHale v. Toole, 258 Pa. 293, 

2 Story's Eq. Jurisp., § 666. As to Stratton v. Bank, 213 Mass. 46; 
the equitable remedy by Adminis- In re Andrews, [1902] 2 Ch. 394'; 3 
tration Suits, where these gifts are Pomeroy's Eq.^ § 1146^ 



134 EXPRESS TRUSTS. [PART I. 

guage is necessary to create a trust. ^ Certain words, it is 
true, are considered apt words for that purpose, and are 
generally used in all carefully prepared - inslruments by 
which a disposition of property, either, inter vivos or after 
death, is effected; but, nevertheless, if the expressions used 
sufficiently indicate an intention to create a trust, they will 
be construed to have that effect, although the technical 
words most proper to accomplish the object in yiew have 
not been employed. 

This is especially so in the case of wills. The intention of 
the testator has always Ipeen regarded as the pole star by 
which any construction of the testamentary instrument is 
to be guided. To ascertain that intention is the aim of all 
well-directed' attempts at interpretation. Whenever, there- 
fore, "it appears from the language of -the will that it was the 
intention of the testator to create a trust, the courts will 
give effect to that intention, in whatever words it may be 
expressed. 

Where the testator's intention to create a trust is declared 
in express language there can be no difficulty. If, for ex- 
ample, th^re is an absolute gift to A. B.-, followed by a dec- 
laration that the subject of the gift is to be held in trust for 
C. D., the absolute nature of the first gift will,' as a matter 
of course, not prevent the trust which is created by the sub- 
sequent language from attaching. In such a case the inter- 
pretation of the will is plain. There is an express trust. 

But let it be supposed that there is a gift to A., followed, 
not by language of a direct and imperative character that 
the bequest or devise should be for the benefit of another, 
but by such phrases as "I wish," "I hopie," "I desire'* 
(or the like) that the gift may be held by the donee for the 
benefit or use of a third party, the question will then arise 
whether such expressions shall be construed as imperative 
and shall be so interpreted as to fasten a trust upon the 
donee, or whether they shall be regarded as indicating a mere 
wish, the compliance with which is left to the donee's dis- 
cretion. The question has been considered in very many 

^ Witherington v. Herring, 140 N. C. 495. 



CH.. It.] EXPRESS TRtJSTS. 135 

cases, and the doctrine has been subject to some fluctu- 
ation. 

Words of expectation, hope, desire, or recommendation, 
used by -testators in the manner above indicated — that is, 
attached to and qualifying an absolute gift — ^are termed 
"precatory words;" and the rule in England upon this 
subject fonnerly was that whenever property is given by 
will to One person, coupled with expressions of expectation, 
request, desire, or recommendation that he will use or dis- 
pose of the same for the benefit of another, the donee will 
be considered a trustee of the property for the purposies 
indicated by the testator, unless it should appear from 
other expressions in the will that the application or non- 
application of the subject to the designated object was in^ 
tended to be left to the option of the donee. In other words, 
such expressions were considered as prima facie imperative — 
the wish of the testator, like the request of a sovereign, was 
to be treated as equivalent to a command.^ 

But within the last few years the doctrine has changed; 
and the English rule now is that precatory words are not to 
be regarded as imperative unless it is plain from the context 
that the testator so intended them.^ Prima facie a mere 
request, or an expression of hope or confidence or expecta- 
tion, does not import a command. ' 

The modem leading English case is In re Adams and the 
Kensington Vestry.' There the testator gave all his real 
and personal estate to his wife, "in full confidence that she 
will do what was right as to the disposal thereof between my 
children, either in her lifetime or by will after her decease." 



» See the remarks of Lord Lang-. Keighley, 2 Yes. Jr. 335, post, § 73, 

dale, M. R., in Knight v. Knight, 3 was not followed. See also Hill v. 
Boav. 173; Knight i>. Boughton, 11 , Hill, [1897] 1 Q. B. 483; and Estate 

CI. & Fin. 513; and Mason v. Lim- of Marti, 132 Cal. 666. ^In'this last 

bury, cited in Vernon v. Vernon, Am- case the English rule was followed 

bier, 4. and the statement in the text ap- 

• Same rule laid down In re Hamil- proved. In re Burley (1910), 1 Ch. 

ton, Trench v. Hamilton, [1895] 1 Ch. 215; In re ConoUy (1910), 1 Ch. 219. 
373. Afiarmed by C. A. [1895] 2 » 27 Ch. D. 396; Brett's Lead. Cas. 

Chan. 370. In this case Malim v. in Eq. 13. 



136 EXPKESS TRUSTS. _[PABT I. 

The Court of Appeal decided that the widow took an abso- 
lute interest, unfettered by any trust in favor of the children. 
Long before this case, indeed, the doctrine of the creation 
of trusts by precatory words had by no means been regarded 
with invariable favor in. England,^ and in many cases a 
disposition had been evinced to qualify it or apply it very 
guardedly.* In Lambe t). Eamjes ' "Lord Justice James took 
a decided stand against the doctrine; and his views were 
approved and adopted in the leading case above cited.* 

72. Doctrine oil this subject in the United States generally; 
in Pennsylvania and Connecticut. 

In the United States the rule in the different states has 
been by no means uniform. 

In some states the tendency has been in favor of giving 
an imperative construction to precatory words.' 

In Massachusetts, although in Warner «. Bates,* where 
the facts were very similar to those 4n Adams and the Ken- 
sington Vestry, a decision in favor of the creation of a trust 
was reached, yet in the more recent case of Aldrich v. Aldrich ^ 

' Sale t». Moore, 1 Sim. 540. Littlefield, 3^ Me. 439; Dresser v. 

* Briggs V. Penny, 3 MacN. & G. Dresser, 46 Me. 58; Lucas v. Lock- 
546; Johnston v. Rowlands, 2 De G. & hart, 10 Sm. & Marsh. 466; Ward v. 
Sm. 356; Webb v. Wools, 2 Sim. N. , Peloubet, 10 N. J. Eq. 305; Carson 
E. 267; Reeves" v. Baker, 18 Beav. v. Carson, 1 Ired. Eq. 329; Chase «. 
372; Hood v. Oglander, 34 L. J. Ch. Chase, 2 Allen, 101; Loring o. Loring, 
528;andMcConniekB. Grogan, L. R. 100 Mass. 340; Collins v. Carlisle, 
4 H. L. 82. ' 7 B. Mon. 14; McRee's Adm'rs v. 

» L. R. ,6 Ch. App. 597. Means, 34 Ala. 349; Ellis v. Ellis, 

* In re Adams and the Kensington 15 Ala. 296; Haskett v. Alexander, 
yestry, 27 Ch. D. 396. See also /m re 134 Ind. 543; Mitchell v. Mitchell, 
Hutchinson and Tenant, 8 Ch. D. 143 Ind. 113; Curd v. Field,' 103 
540; Mussoorie Bank v. Raynor, 7 Ky. 293; Trustees v. Epsom School 
App. Cas. 321; and Hanbury v. District, 75 N. H. 408; Sands v. 
Fisher, [1904] 1 Ch. 415. See the Waldo, 165 N. Y. S. 654; Seymour 
remarks of Jessel^ MR., in Stead „ g^^f^^ ^g Conn. 516; Floyd v. 
V. Mellor, 5 Ch.D. 227; and Pamall q -ii, en t?i ^or 

■D 11 n ou T» nc Smith, 59 Fla. 485. 

e». Pamall, 9 Ch. D. 96. . .„„,, „». „ , „ 

' Harrisons t-. Harrison'^s Adm'r, 2 ^^ ^^- ^'^- ^^^ ^'^ SP°°''«'^ 

Gratt. 1 ; Reid's 'Adta'i v. Blaekstone, "• I^ovejoy, 108 Mass. 533. 

14 Gratt. 363 (though see Crump v. " 172 Mass. 101. See also Durant 

Reid's Adm'r, 6 Gratt. 372); Cole «. «'• Smith, 159 Ma^. 229; Poor v. 



CH. II.] EXPRESS TRUSTS. 137 

it was said (in speaking of the old rule), that the tendency 
of the later decisions was, if not to relax it,- at least not to 
extend it. It was therefore held that the true views were 
those which had been expressed in Lainbe v. Eapaes, and that, 
in the case in hand, no trust had been created. 

In Connecticut and Pennsylvania the doctrine that prec- 
atory words are to be considered as prima fade imperative 
has been regarded with disfavor. In the former state the 
earUer decision of Bull v. Bull ^ was disapproved in Gilbert 
V. Chapin; " while in the latter, in Pennock's Estate,' the 
conclusions reached by the court were, that "words in a 
will, expressive of desire, recommendation, and confidence, 
are not words of tfechnical, but of common parlance, and 
are not prima facie sufficient to convert a devise or bequesit 
into a trust; and the old Roman and English rule on this 
subject is not part of the common law of Pennsylvaniia;" 
and that such words may amount to a declaration of trust, 
when it appears, from other parts of the will, that, the testa- 
tor intended not to commit the estate to the devisee, or 
legatee, or the ultimate disposal of it to his kindness, justice, 
or discretion." Later cases have followed this rule.* 

In South Carolina, North Carolina, Delaware, and New 
York, also, the disposition appears to be to construe the rule 
with strictness,^ in the latter state the English case. In re 
Hutchinson and" Tenant,* being followed. A still mqre 
decided stand in favor of the modem doctrine has been taken 



BradBury, 196 Mass. 207, and Baker 219; and Mun)hy'8 Estate, 184 Pa. 

V. Baker,. 63 W. Va. 165. 314. See Rhett v. Mason, 18 Gratt. 

18 Conn. 47. . 541; Stinson's Estate, 232 Pa. 218. 

2 19 Conn. 351. Dexter v. Evans, */Bowlby v. Thunder, 105 Pa. 173; 

63 Conn. 58, is consistent with this Hopkins v. Glunt, 111 Pa. 287; Pres- 

ruling, for there the whole will showed byterian Board v. Culp, 161 Pa. 467. 

that the words were used in an im- See Burt v. Herron, 66 Pa. 400. 
perative sense. Hughes v. Fitz- ' Arnold v. Arnold, 41 S. C. 291; 

gerald, 78 Conn. 4. ' St. Janjes ». Bagley, 138 N. C. 384; 

'20 Pa,." 268-280. See also, Pais- Bryan v. Nulby, 6 Del. Ch. 208; 

ley's Appeal, 70 Pa. 153; The Second Post v. Moore, 181 N. Y. 15. ■ ' 
Ref . Pres. Church v. Disbrow, 52 Pa. » 8 Ch. D. 540. 



138 EXPRESS TRUSTS. [PART 1. 

in Maryland and in Tennessee.^ In New Jersey ^ the in- 
clination now is the other way, i. e., in favor of the old rule.* 

The subject came before the Supreme Court of the United 
States in 1888, in Colton v. Colton.^ The gift there was in 
the following ienns: "I give arid bequeath to my said wife 
* * ? aH of ray estate. * * * I recommend to her the care 
and protection of my mother and sister, and request her to 
make such gift and provision for them as to her judgment will 
be best;" The authorities were reviewed; and the conclu- 
sion reached that the language in question was to be deemed 
imperative. 

In this conflict or apparent ^ conflict of authority, rules 
upon the subject must be guardedly stated. 

73. What Precatory Words will create a Trust. v 

It is, of course, almost impossible to state, with certainty, 
what particular precatory words will or will not, in any case, 
create a trust; for the^ are, in most instances, so interwoven 
with other expressions that the effect to be given to them 
must depend very much upon the language of the particular 
instrument under consideration. The following expressions, 
however, have been held effective in fastening the character 
of a trust upon what would otherwise have been an abso- 
lute gift: "desire," ^ "recommend," ' "not doubting," * "in 



• Pratt V. Sheppard, etc., Hospital, ' Cruwys v. Colman, 9 Vesej, 319; 

88 Md. 610; Ensley v. Ensley, 105 Mason v. Limbury {supra); Erickson 

Tenn. 107. , . v. Willard, 1 N. H. 217; Daly v. 

" And Georgia, Prince v. Barrow, Daly, 142 Tenn. 242; TurriU v. 

120 Ga. 810. ' Davenport, 159 N. Y. S. 814. "De- 

' Van Duyne v. Van Duyne, 2 Mo- sire and direct," Plant v. Plaut^ 80 

Cart. 603; overruling same case in 1 Conn. 673; Cockrill v. Armstrong, 

McCart. 397; Eberhardt v. Perolin, 31 Ark. 580. 

48 N. J. Eq. 592. ' Malim v. Keighley, 2 Ves. Jr. 

" 127 U. S. 300. • 333, 529; Pierson v. Garnet, 2 Bro. 

5 Mr. Justice Matthews in Colton C. C. 38; Tibbits v. Tibbits, 19 Ves, 

V. Colton did not seem to consider 664; Horwood w, West, 1 Sim. & 
that his views, as expressed in that _ Stu. 387; Ford v. Fowler, 3 Beav. 

case, were contrary to the decision in 146; Chambers w.- Davis, 62 N. C. 152. 

In re Adams and the Kensington ' Massey v. Sherman, Ambler, 520; 

Vestry, 27 Ch. D. 394. Parsons v. Baker, 18 Ves. 476. 



CH, ir.] EXPRESS TRUSTS. 139 

the fullest confidence," ^ "wish and wiU," ^ "allow," » 
"hope," * "entreat," * and,Jn general, any words which in- 
dicate" ah intention that the donee should not take benefi- 
cially, but should be merely an instrument to distribute the 
testator's bounty to others.® \ 

The question in all cases is whether a trust was or was not 
intended to be created, or, in other words, whether the testa- 
tor designed to leave the application or non-application of 
the subject-matter of the bequest to the designated object 
entirely to the discretion of the donee, or whether his mean- 
ing was that his language should be deemed imperative, and 
that such discretion should be excluded.'' This is usually 
considered, by the best authorities, to depend- upon three 
things :^rsi, upon the general terms of the will; second, upon 
the certainty of the object; and third, upon the certainty of 
the subject.* 

74. Are such words prima facie imperative? 

First. Precatory expressions may be considered as impera- 
tive if they are used in sUch a way as to show plainly an in- 
tention to exclude discretion ; the wish of a testator, no matter 
how expressed, if expressed clearly, should be regarded as a 
conunand.' But-unless precatory woi'ds are clearly so used, 
they will not create a trust. ^^ It is seldom, indeed, that ex- 
pressions of this nature are found standing alone, and not 

•Wright V. Atkyns, 17 Ves. 255; 'Mdrich». Aldrich, 172 Mass. 101; 

19 Ves. 299; T. & R. 146; and see Clifford v. Stewart, 95 Me. 38. 

Warner v. Bates, 98 Mass. 274; Har- 'Briggs v. Penny, 3 MacN. & G. 

risons V. Harrison's Adm'r, 2 Gratt. 546; Steadw. Mellor, 5 Ch. Div. 227 ,~ 

1; Bull V. Bull, 8 Conn. 47; Dresser Lines w. Darden, 5 Fla. 61; Ensley jj. 

V. Dresser, 46 Me. 48; Shovelton v. Ensley, 105 Tenn. 107; notes to 

Shovelton, 32 Beav. 143. Harding v. Glyn, 2 Lead. Cas. Eq. 

2 McRee's Adm'rs v. JNleans, 34 ut sup. 

' Ala. 349. ' ' Fox's Appeal,'99 Pa. 286; Oyster 

» Hunter v. Stembridge, 12 Ga. 192. v. Knull, 137 Pa. 448; Foster i>. Will- 

* Harland v. Trigg, 1 Bro. Ch. 144; son, 68 N. H. 241. 

Curd V. Field, 103 Ky. 293. '■<• Burt v. Herron, 66 Pa. 402. See 

6 Prevtost v. Clarke, 2 Mad. 458; Hambel v. Hambel, 109 la. 459; Wil- 

Taylor w^George, 2 V. & B. 378. liams v. The Committee, 92 Md. 

,« See Harding v. Glyn, 2 Lead. Cas. 497. 
Eq. 948 (4th Eng. ed.) and notes. 



140 EXPRESS THUSTS. [PABT I. 

strengthened, or qualified, or controlled by the context; but 
if it is clear from the whole will that discretion is excluded, 
precatory words ought to be considered as imposing an 
obligation, and not merely as constituting a request which 
tl^e person to whom it is addressed is at liberty to disregard. 
The reason is obvious, A will, in its very nature, is the 
disposition which the testator desires to have made of his 
estate after his death. All expressions in it indicative of 
his wish or will are commands. As a matter of course, the 
prima fades of a mere request, established by the use of 
precatory words, is liable to be rebutted by any other ex- 
pressions which indicate an intention on the part of the testa- 
tor that they should be takea in an imperative sense; in 
other words, this particular canon of construction, now 
imder consideration, is, like all others, subordinate to the 
general rule that the intention of the testator as gathered 
from the whole will is to govern.^ 

It is to be observed here, that mere discretion as to the 
distribution of the subject-matter of the bequest among the 
designated objects, or a discretion as to the selection of a 
recipient of the testator's bounty out of a particular class, 
will.not detract from the imperative character of precatory 
expressions, and the donee will be considered as a trustee 
with a power of distribution or selection.^ 

76. Certainty of the object is an element for consideration. 

Second. The determination of the question whether or not 
discretion has been excluded, often depends upon the degree 
of certainty with which the objects of the supposed bdunty 
are pointed out. If, for example, a gift is bestowed coupled 
with a suggestion or recommendation that it be applied by 

» E^ton ti. Watts, L. R. 4 Eq. 151, Newberry, 112 lU. 123; Pratt t», 

155; Young V. Martin, 2 Y. & C. 582; Sheppard, etc.. Hospital, 88 Md. 

Brunson v. King, 2 Hill Gh. 490; Van 610; Foster v. Willson, 68 N. H. 

Amee t». Jackson, 35 Vt. 177; Negroes 241. 

Chase et al. v. Plmnmer, 17 Md. 165; ' Shovelton v. Shovelton, 32 Beav. 

Spooner V. Lovejoy, 108 Mass. 533; 143; Harding v. Glyn, 1 Atk. 469; 

Baconv. Ransom, 130 Mass. U7; Bid- 2 ^Lead. Gas. Eq. 950 (4th Eng. 

die's Appeal, 80 Pa. 258; Milk v. «d.). 



CH. 11.]- EXPRESS TRtJSTS. 141 

the donee to ^objects which are vaguely and imperfectly 
described, this vagueness will be regarded' by the court as 
tending to show that the application or non-application of 
the gift was to be left to the option of the donee. It is true, 
indeed, that certainty is required in all trusts, no m&tter 
how they may be created. "To constitute a valid trust," 
said Sir William Grant, M. R., in Cruwys v. Cohnan,' "via.- 
doubtedly three circxmistances must concvu*: sufficient words 
to raise it, a definite subject, and a certain or ascertained 
object." There is, however, this difference between trusts 
created by technical words and those raised by expressions 
of recommendation and request. In the former, if the trust 
fails fpr wanl; of certainty in the objects, the trustee will not 
hold beneficially, but there will be a resulting trust'in favor 
of the donor of the estate; in the latter this uncertainty will, 
in many instances, take away entirely from the gift its fidu- 
ciary" character, and cause it to vest beneficially in the donee. 
Ill one case a trust is created, but fails for want of certainty 
in its objects; in the other the want of certainty is evidence 
to show that the donor had never intended to create a trust. ^ 
"Wherever," says the Lord Chancellor, in Morice v. The 
Bishop of Durham,' "the subject to be administered as 
trust property, and the objects for whose benefit it is to be 
administered are to be found in a will not expressly creating 
a trust, the indefinite nature and quantum of the subject, 
and the indefinite nature of the objects are always used by 
the court as evidence that the mind of the testator was not 
to create a trust;" and this rule has been acted upon in many 
cases. ^ But, although uncertainty in the object is evident 
to show that a trust was not intended, it is by no means 
conclusive evidence; * for if the precatory words are strong, 

1 9 Vesey Jr. 323. v. Tolson, IQ, G. & J. 159; Giles v. 

* Pratt V. Sheppard, etc., Hospital. Anslow, 128 111. 187; Pratt v. Shep- 
88 Md. 610. \ pard, etc., Hospital, 88 Md. 610; 

' 10 Vesey Jr. 536. Williams v. The Committee, 92 Md. 

* Harlandw. Trigg, 1 Bro. Ch. 142; 497. 

Meredith v. Heneage; 1 Sim. 542; ' Pratt i>. Sheppard, etc., Hospital, 
Harper v. Phelps, 21 Conn. 259; Hood 88 Md. 610; Williams ». The Com- 
V. Oglander; 34 L. J. Ch. 528; Tolson mittee, 92 Md. 497. 



142 EXPRESS TRUSTS. [PART I. 

and not qualified by other expressions, the legatee or devisee 
will not take beneficially, although the trust should fail Jor 
want of certainty in the object; and still more so will this be 
the case if other provisions in the will indicate the intehtion 
of the testator to be that the donee should take only as a 
trustee.^ 

76. Certainty of the subject. 

Third. The certainty with which the subject' of the be- 
quest or devise is described roust also be taken into considera- 
tion." It' very often happens that a testator gives property 
to one person with a request or hope that after the decease 
of the first taker the "surplus" (describing it by this or some 
other uncertain word) shall be distributed among some 
designated objects. It has been held that such terms in- 
dicate a desire on the part of the testator that the first taker 
should have absolute control over the property, and' that 
its ultimate disposition should depend entirely upon his 
discretion.* But any words which point out clearly what 
the property is to which "the trust is intended -to apply will 
be sufficient, no matter how untechnical and unartificial 
they may be.* 

It may, perhaps,' be doubted whether ^this lioctrine of 
precatory trusts should be extended to conveyances inter 
vivos. It was, nevertheless, so extended in Liddard v. lid- 
dard,^ by the Master of the Rolls, Lord Romilly. 



' Bernard II. MinshuU, Johns. 276; Palmer v. Simmonds, 2 Dr. 221; 

Ingram v. Fraley, 29 Ga. 553; Hill on Smith v. Bell, Mart. & Yerg. 302; 

Trustees, 110 (4th Am. ed.), notes. Constable v. Bull, 3 DeG. & Sm. 411; 

The rule laid down in Briggs v. Penny, Nunn v. O'Brien, 83 Md. 198; Durant 

.3 MacN. & G, 546, on this subject v. Smith, 159 Mass. 229; Coulson v. 

has not met with entire approval AJnaugh, 163 111. 298; Hill on Trus- 

See Hawkins on Wills, 160. But see tees, 119 (4th Ani. ed.). See the 

In re Foley's Will, 10 N. Y. Supp. 12. rules upon the subject of precatory 

' Swarthout v. Swarthout et al,, trusts statea in HiH on Trustees, 73 

111 Wis. 102. I (4th Am. ed.), and approved in Perry 

= Knight V. Bpughton, 11 CI. & P. on Trusts, § 114, note 

513; Clancarty v. Clancarty, 31 L. R. * Cruwys v. Colman, 9 Ves. 319; 

Ir. 549; Pennock's Estate,' 20 Pa. 268; Hill on Trustees, 74. 

Cowman v. Harrison, 10 Hare, 234; ' 28 Beav. 266. 



CH. II.] EXPRESS TEUSTS. 143 

77. Powers in Trust; Salusbury v. Denton. 

It sometimes happens that a trust is created, of which the 
subject is not, strictly speaking, property, but only a poWer 
or authority to dispose of property. .A power is usually de- 
fined to be an authority whereby a person is enabled to dis- 
pose of an interest vested either in himself or in another. The 
exercise of these powers, in most instances, depends upon 
the discretion of the donee of the power, and no person can 
take by virtue of the power unless the donee thereof chooses 
to exercise this discretion. But there are also powers which 
partake of the nature of trusts. "There are not only a 
mere trust and a mere power," said Lord Eldon, in Brown 
V. Higgs ^ (which is the leading ^authority upon the subject 
of powers in trust)^ "but there is also known to this court a 
power which the party to whom it is given is intrusted and 
required to execute ; and with regard to that species of power 
the court consider it as partaking so much of the nature and 
qualities of a trust,^ that if the person who has that duty 
imposed upon him does not discharge it, the court will 
to a certain extent discharge the duty in his room and 
place." ^ This rule has been followed both in England 
and in the United States.,' If the donee of a power in 
trust chooses to exercise the power, he can select, at his 
discretion, any one of the designated class.^ If he makes no 
selection, a court of chancery will not attempt to exercise 

> 8 Vesey, 5lO; 4 Ves. 708; 5 Ves. 83; Whiting v. Whiting, 4 Gray, 240; 

495. , ^ Chase v. Chase, 2 Allen; 101; Hatch- 

' See also Harding v. Glyn, 1 Atk. ett v. Hatchett, 103 Ala. 556; French 

469; Cole v. Wade, 16 Ves. 42. ^ v. Westgate, 70 N. H. 229; Perry on 

' Brown v. Pocock, 6 §jm. 257; Trusts, § 248 et seq. 

Croft V. Adam, 12 Sim. 639; Salus- * In Willis v. Kymer, 7 Ch. D. 183 

biiry v. Denton, 3 K. & J. 529; In re (a case of the first impression), it was 

Caplin's Will, 34 L. J. Ch. n. s. 578; decided by Jessel, M. R., that where 

Penn/w. Turner, 2 Phil. 493; Fdrdyce* a trust had been created by wiU, >n 

V. BridgeSr 2 PhiL 497; White's favor of "children" simplidler, the 

Trusts, Johns. 656; Minors v. Bat- trustee might, in executing the trust, 

teson, L. R. 1 App. Cas. 428; Withers limit the shares of the daughters 

V. Yeadon, 1 Rich. Eq. 324; Collins to their separate use. The trust in 

V. Carlisle, 7 B. Mon. 14; Gibbs v. that case waa created by precatory 

Mansh, 2 Mate. 243; Miller v. Meetch, words. 
8 Pa. 417; Smith v. Bowen, 35 N. Y. 



144 EX?EESS TRUSTS. [PART I. 

any discretion, but will make equal distribution among the 
parties who constitute the favored class. ^ Thus, in the ease . 
of Salusbury v. Denton,^ a testator gave a fund to his widow 
to be disposed of by her partly to charity ;and partly among 
such relations as she should select. Upon the death of 
the widow without exercising the power, it was held that the 
charity was entitled to one moiety of the fundj and that^the 
other should be divided among those entitled under the 
statute of distributions. 

In those cases in which the execution of the power is nat 
to take effect out of an interest conferred upon the donee of 
the power, the courts have exhibited greater reluctance in 
favoring the power than in those cases in which the donee 
of the power would be, entitled beneficially in default of the 
execution of the power; because, in the latter case there 
would be an intention of the testator to qualify the gift to 
the donee of the power which would be defeated, whereas 
no such intention can be presumed to exist where the donee 
of the power has no interest in the estate.^ However, the 
tendency of the courts is now towards favoring the objects 
of the power.* 

It is only when the power is in trust that a court of equity 
will decree its execution."' Therefore, it would seem to 
follow that there must be sufficient certainty in declaring 
the objects and pointing out the subject of the trust ; and that 
no trust will be construed to exist when there is nothing to 
Show with certainty in whose favor or in what shares a gift- 
was intended.* 

' A Court of Chancery, will not in- Ves. Jr. 708; s. c. 8 Ves. 561; Bull v. 

terfere with discretion in cases of pri- Vardy, 1 Ves. 271; 2 Sudg. Pow. 177; 

vate trusts, and, o/orton, in those of Duke of Marlborough v. Godolphih, 

a public character. Haight v. Day, 1 2 Ves. Sr. 61; Crossling v. Grossling, 

John* Ch. 21; Naglee's Est., 52 Pa. "2 Cox, 396. 

159; Wetmore v. Henry, 259 111. 80. < Hill on Trustees, 69. 

^Z K. & 3. 529. See Rorke v. « Xowler e. Towler, 142 N. Y. 371; 

Abraham, [1895] 1 L. R. 334; Glover Osborne v. Gordon, 86 Wis. 92. 

V. Conddl, 163 111. 566-594; Smith v. » In re Eddo^es, 1 Dr. & Sm. 395; 

Floyd, 140 N. Y. 337. , In re Weekes' Settlement, [18971 1 

' Hill on Trustees, 68; Harding v. Ch. 289. 
Glyn, 1 Atk. 468; Brown v. Higgs, 4 



CHAPTER III 



IMPLIED TRUSTS 



78. Implied Trusts of two kinds: Re- 

sulting Trusts and Construc- 
tive Trusts. 

79. Resulting Trusts of tour kinds. 

80. Purchase-money paid by one; 

title taken in name of another. 

81. Requisites to such a Trust. 

82. Statute of Frauds. 

83. Parol evidence admissible. 

84. Advancements. 

85. Trusts of this kind abolished in 

certain States. 

86. Purchases by Trustees with Trust 

Funds: Following Trust Funds. 



87. Conveyance where Trust is not 

declared or fails. 

88. Where the beneficial interest is 

not exhausted. 

89. Exceptions in favor of charities. 

90. Conveyances without considera- 

tion. 

91. Constructive Trusts. 

92. Trustee cannot acquiire rights an- 

tagonistic to cestui Que trust, 

93. Extent of this rule. 

94. Trustee cannot purchase at his 
own sale. 

95. Other Constructive Trusts. 



78. Implied Trusts of two kinds: Resulting Trusts and 
Constijxctive Trusts. 
Trusts by implication of law may arise either for the pur- 
pose of carrying out the presumed intention of the parties or 
they may be entirely independent of, or even contrary to, 
intention. Trusts of the first class are said to result by opera- 
tion or presumption of law from certain acts or relations of 
parties from which an intention to create a trust is supposed 
to exist, and they are, therefore, called Resulting or Presump- 
tive Trusts. Trustsof the second class exist purely by con- 
struction of law, without any .actual or supposed intention 
that a trust should be created, ^ut merely for the purpose of 
asserting rights of parties or of frustrating fraud. They are 
termed, therefore. Constructive Trusts.^ 



1 The term "Constructive Trusts" 
is somewhat arbitrary. It is, by 
some authors and judges, used syn- 
onymously with "Implied Trusts." 

10 - • 



See the language of Lord Esher, M. 
R., in Soar v. Ashwell, [1893] 2 Q. B. 
390-393; O'Bear Co. w.-Volfer, 106 
Ala. 205. 

145 



146 IMPLIED TRUSTS. ^ [PART I. 

79. Resulting Trusts of four kinds. 

Resulting trusts may arise in several ways, and may be 
conveniently divided into the following classes: (1) Where a 
purchaser pays the purchase-money, but takes the title in 
the name of another; (2) where a trustee or other fiduciary 
buys' property in his own name, but with trust funds; (3) 
where the trusts of a conveyance are not declared, or are 
only partially declared, or fail; and (4) where a conveyance 
is inade without any consideration, and it appears from cir- 
cumstances that the grantee was not intended to take 
beneficially.^ 

80. Purchase-money paid by one; title taken in name of 
another. 

The nature of resulting trusts of the first of the above 
classes was clearly stated by Lord Chief Baron^Eyre in the 
leading case of Dyer v, Dyer,^ and his language has been 
approved and followed h*th in England and in this country. 

1 This classification adopted in Wil- = 2 Cox, 92; 1 Lead. Cas. Eq. 165; 

liams V. WiUiams, 108 Iowa, 91; 203* (4th Eng. ed.) See Buck v. 

Avery «. Stewart, 136 N. C. 426. No Pike, 2 Fairfield, '9; Eivert v. Jones, 

trust results in favor of a person 236 Fed. 712; Birmingham Ry. Co. 

furnishing the consideration for land v. Louisville R. Co., 152 Ala. 422; 

the title to which with his consent is Land Co. v. ilonth,' 123 Ark. 360; 

taken in the name of another. Keith Costa v. Selva, 127 Cal. 351 ; Fox v. 

'v. Wheeler, 105 Arfc. 318; Banks v. Shanley, 94 Conn. 350; Hawkins v. 

Bradwell, 140 Ga. 640; Bachseits v. Hawkins, 150 Ga. 6l; Hartley v. 

Leichtiweis, 256 111. 360; Parker v. Hartley, 279111. 593; Roche w. Roche, 

Boyle, 178 Ind. 566; Goodman v. 188 Ky. 327; Bank u. Carter, 132 Md'. 

Smith, 94 Neb. 227; Lariaey v. Lari- 218; Frisco v. Frisco, 90 N. J. Eq. 

sey, 93 -S. C. 450; Asam v. Asam, 289; Harris v. Harris, 178 N. C. 7; 

239 Pa. 295; Rosa «. Hummel, 252 Evans v. McKee, 152 Fa. 89; Andei^ 

Pa. 579; Davis v. Downer, 210 Mass. sen v. Cercone, 54 Utah, 345; Straley 

573; Wrightsman ». Rogers, 239 Mo. v. Esser, 117 Va. 135; Williams v. 

417; Lord v. Reed, 254 111. 358, Wager, 64 Vt. 326. 



CH. in.] IMPLIED TRUSTS. 147 

"Theclear result of all the cases," he says, "without a single 
exception, is that the trust of a legal estate, whether freehold, 
copyhold, or leasehold; whether taken in the names of the 
purchajser and others jointly, or in the names of others with- 
out that of the purchaser; whether in one name or several; 
whether jointly or successive,- results to the man who ad- 
vances the purchase-money."" To illustrate the doctrine 
thus stated, suppose A. advances the purchase-money of an 
estate, and a conveyance of the legal interest- in it is made 
either to B., or to B. and C, or to A., B., and C. jointly, or to 
A., B., and C. successively. In all these cases, if B. and Q. 
are strangers, a trust will result in favor of A.^ 

The reason of this doctrine is, that the man who pays the 
purchase-money is supposed to become, or to intend to be- 
come, the owner of the property, and the beneficial title 
follows that supposed intention." 

This doctrine is in analogy to the common-law rule, that 
where there is a feoffment without consideration, the use 
will result to the feoffor.' 

' 1 Lead. Cas. in Eq. 173; Carter ever." The consideration proceeded 

V. Challen, 83 Ala. 135; O'Connor v. from F., who stood in loco parentis to 

Irvine, 74 Cal. 435. Resulting Trusts R. Held that if the statute of uses 

discussed in 89 Law Times, 152. executed the legal estate in R., it did 

2 But this rule will not apply where not, because the consideration pro- 

the intention is otherwise. N. con- ceeded from F., make her a Trustee 

veyed to F. The grantee was desig- for him. A trust wiU-not be raised 

nated "Trustee for R,'' and the in opposition to the declaration of the 

habendum-clause~was, "To have and person who advances the money or 

to hold the above described land and the obvious purpose and design of 

premises, with the appurtenances, the transaction. Wolters v. Shraft, 

unto the said party of the second part 69 N. J. Eq. 215. 

F., his heirs and assigns, to the only ' Per Eyre, C. B., in Dyer v. Dyer 

proper use, benefit and behoof of R. (supra,' p. 146, nr:'2). 
aforesaid, her heirs and assigns for- 



148 



IMPLIED TRUSTS. 



[part I. 



It applies to both realty and personalty/ and trusts of this 
nature are_expressly excepted out of the Statute of Frauds.^ 
Where, however, an agent buys land for his principal, and 
not only takes the conveyance in his own name, but also' 
pays the price out of his own funds, no resulting trust will 
arise, and the case will fall within the Statute of Frauds, 
because in such a case there is no payment of the purchase- 
money upon which the right of the principal can rest, but 
that right is dependent solely upon the verbal promise of the 
agent.' Where no money is advanced, and there is nothing 
more in the transaction than is implied from the violation 
of a parol agreement, equity will not decree the purchaser 
a trustee.^ A resulting trust of this kind must arise, if at 



1 Ellsworth V. M. T. Ames Co., 125 
111. 223. But not, it is said, to perish- 
able property; Union Bank v. Baker, 
8 Hump. 447; Perry on Trusts, 
§ 130; nor to a mere claim to prop- 
erty; MandeviUe v. Solomon, 33 Cal. 
38. Applied between rival news- 
gathers ^nd distributors in favor of 
the one at whose expense the news 
was gathered. International News 
Service.!). Associated Press, 248 U. S. 
239. 

2 29 Car. II., c. 3, §8. See Gal- 
braith v. Galbraith, 190 Pa. 225; 
Kauffman v. Kauffman, 266 Pa. 275. 
In. Hoxie v. Carr, 1 Sma. 187, jt was 
said by Judge Story that the ex9ep- 
tion of resulting trusts from the Stat- 
ute of Frauds was merely in affirm-, 
ance of the general law; and that, 
therefore, in Rhode Island, where the 
exception did not exist, the rule was 
the same as in England. This was 
followed in McGuire v. Ramsey, 4 
Eng. (Ark.) 525. 

' Bartlett v. Pickersgill, 1 Eden, 
515; 1 Cox, 15; James v. Smith, [1891] 
1 Ch. 384; Dorsey v. Clarke, 4 Har. & 
J. 557 ; Jackman v. Ringland, 4 W. & 
S. 149; Fox v. Heffner, 1 W. & S. 372; 
Sample v. Coulson, 9 W. & S. 62; Rob- 
ertson V. Robertson, 9 Watts, 32; 
Lloyd V. Lynch, 28 Pa. 419; O'Hara 
V. Dilworth, 72 Pa. 397; Dougan v, 
Bemis, 95 Minn. 220; Schrager v. 



Cool, 221 Pa. 622; Modem Baking 
Co. V. Orringer, 271 Pa. 152; Taliferro 
V. Taliferro, 6 Ala. 404; Day v. Am- 
burgey, 147 Ky. 123; Irwin w.'Ivers, 
7 Ind. 308; Minot ». Mitchell, 30 Ind. 
^28; Homer v. Homer, 107 Mass. 82. 
In Heard v. Pilley, L. R. 4 Ch. 548, 
some doubts are expressed as to the 
correctness of the decision in Bartlett 
V. PickersgiU; but see James v. Smith, 
[1891] 1 Ch. 384; Dowd v. Holbrook, 
152 N. C. 547; Bergner v. Bergner, 
219 Pa. 113. In Follansbe v. ffil- 
breth, 17 111. 522; Morris v. Reigel, 19 
S. D. 26; Hidden v. Jordan, 21 Cal. 
92, and Chastain v. Smith, 30 Ga. 
96; Johnson v. Hayward, 74 Nev. 
157, it was held that the trust could 
be enforced. See Bryan v. Mc- 
Naughton,. 38 Kan. 98; Vallette v. 
Tedens, 122 111. 607; and Camden 
V. Dewing, 47 W. Va. 310; Pollinan 
V. Curtice, 255 Fed. 630; Rogers v. 
Genung, 75N. J..Eq. 13. 

* Green v. Drummond, 31 Md. 71; 
Dollar Savings Bank v. Bennett, 76 
Pa. 402; McCloskey v. McCloskey, 
205 Pa. 491; Walker v. Brungard, 13 
Sm. & March. 725, 765; Hackney v. 
Butts, 41 Ark. 393; Acker v. Priest, 
92 Iowa, 610; Furber v. Page, 143 111. 
622; Jacksonville Nat. Bank v. Bees- 
ley, 159 lU. il20; Woods v. Ward, 48 
W. Va. 652; Lyons v. Bass, 108 Ga. 
673; Whiting v. Dyer, 21 R. I. 278; 



CH. III.] 



IMPLIED TBUSTS. 



149 



all, from the payment of the purchase-money, at the time 
of the conveyance. ^ If an express agreement is relied upon, 
it necessarily excludes the idea of any trust arising purely 
by implication of law. Such a trust will, therefore, be an 
express trust, and will fall directly within the Statute of 
Frauds.^ But where funds are furnished to the agent, the 
mere fact that they cannot be traced distinctly into the land 
will not prevent a trust frpm resulting.* It has, moreover, 
been recently decided €hat where there is fraud a trust may 
be insisted upon, although the funds may not be those of 
the party who asserts the trust.^^ 



81. Requisites to such a trust. 

The person in whose favor a trust is claimed to result 
must pay the purchase-money as hi^ own; if he merely ad- 
vances it as a loan, no trust will result.^ 



Oden V. Lockwood, 136 Ala. 514 
Markham v. Katzenstein, 209 111. 607 
WUIis V. Robertson, 121 la. 380 
Bryan v. Douds, 213 Pa. 221; Norton 
V. Brink, 75 Neb. 575; Day v. Am- 
burgey, 147 Ky. 123; Ghadwiok v. 
Arnold, 34 Utah, 48. 

' See Gerry v. Stimson, 60 Me. 189; 
Fessenden v. Taft, 65 N. H. 39; Sise- 
more v. Pelton, 17 Or. 546; Beecher 
V. Wilson & Co. 84 Va. 813; Lazarus 
V. Lazarus, 12 H^,waii, 369; Higgin- 
botham v. Boggs, ' 234 Fed. 257; 
Katzing v. Wiegand, 286 III. 646; 
KaufTman v. Kauffman, 266 Pa. 
276. 

2 1 Lead. Gas. Eq. 216 (4th Eng. 
ed.); Gib^n «. Foote, 40 Miss. 792; 
Sheldon v. Harding, 44 111. 68; Lowry 
V. MoGee, 3 Head,, 274; Snyder v. 
Wblford, 33 Minn. 175; Farnham v. 
Clements, 51 Me. 426; though see 
Harrold v. Lane, 53 Pa. 268; Gohn 
V. Chapman, Phil. Eq. (N: G.) 92; 
HaU V. Congdon, 56 N. H. 279; and 
Bernard o.Bougard,Harring.Ch. 143; 
Brotherton v. Weathersby, 73 Tex. 
471; Gaines ». Summers, 50 Ark. 322; 



Bobbins v. Kicaball, 55 Ark. 414; 
Pruitt v. Pruitt, 57 S. C. 155; Nagen- 
gast V. Alz, 93 Md. 522. 

'See Frank's Appeal, 59 Pa. 194; 
Sanfoss v. Jones, 35 Gal. 422; Malloy 
V. Malloy, 5 Bush, 465. 

* Rochefoucauld v. Boustead, 
[1897] 1 Gh. 206, where Bartlett v. 
Pickersgill is, on that point, over- 
ruled. See, also, Kennedy v. Mc- 
Closkey, 170 Pa. 354. 

'Bartlett v. Pickersgill, 1 Eden, 
515; Aveling v. Knipe, 19 Ves. 445; 
Milliken v. Ham, 36 Ind. 166;" Six 
V. Shaner, 26 Md. 444; Gibson v. 
Foote, 40 Miss. 788; Torrey v. Cam- 
eron, 73 Tex. 583; Beecher v. Wilson 
& Co. 84 Va. 813; Hodges v. Vemer, 
100 Ala. 612. When a purchase is 
made on the credit ot two, and the 
money is paid by only one, there will 
be ilo resulting trust. Brooks v. 
Fowle, 14 N. fi. 248; Walsh v. Mc- 
Bride, V2 Md. 45;iJohnston v. Coney, 
120 Ga. 776; Sui;asky v. Weintraub, 
90 S. C. 522; Donovan i). Donovan, 
173 111. App. 522; Phillips v. Phillips, 
81.N.J.Eq.459. 



150 



IMPLIED TRUSTS. 



[part I. 



If the purchase-money is paid by several, and the title 
taken in the name of one, a trust will result to the others in 
proportion to the amount paid by each.^^ But to create a 
resulting trust in such a case, the payment must be of some 
definite part of the purchase-money.^ In some cases it has 
been held that where there is no evidence as .to the amount 
advanced by each party, the presumption will arise that they 
have furnished the purchase-money in equal proportions.' 
In England the presumption seems to be that when money 
is advanced in equal proportions, a joint tenancy is supposed 
to have been contemplated with equal chance of survivorship 
to all; but as survivorship has been removed as an incident 
to joint tenancy in most of the states of the Union such a 
presumption would not probably arise in America.* 

It is said in Sugden on Vendors, that where two agree to 
buy land, and the title is taken in the name of both, but one 



^Botsford V. Burr, 2 Johns. Ch. 
410; Union Coll. v. Wheeler, 59 Barb. 
585; Winslow v. Young,'94 Me. 145; 
Sanders v. Steele, 124 Ala. 415; Moul- 
trie V. Wright, 154 Cal. 520; Lowe v. 
■ Hendrick, 86 Conn. 481; Jackson v. 
Jackson, 80 Fla. 557; Feingold v. 
Roeschlein, 276 lU. 79; Hill v. Pollard, 
132 Ind. 588; Lowell v. Lowell, 185 
la. 508; Honore v. Hutchings, 8 Bush, 
687; Lawry v. Spaulding, 73 Me. 31; 
Thomas v. Thomas, 62 Miss. 531; 
Ahrens v. Simon, 101 Neb. 739; 
Crowley v. Crowley, 72. N. H. 241; 
Baklr v. Baker, 75 N. J. Eq. 305; 
Union College v. Wheeler, 61 N. Y. 
88; Turpice u. Lowe, 4 Ohio Cir. Ct. 
599; Puckett v. Benjamin, 21 Oreg. 
370; Speer v. Bums, 173 Pa. 77; 
Bible V. MarshaU, 103 Tenn. 324; 
Kogers v. Donnellan, 11 Utah, 108; 
Mumpower v. Castle, 128 Va. 1; 
O'DonneU v. McCool, 89 Wash. 537; 
SeUer v. Mohn, 37 W. Va. 507. 
Though a contrary doctrine seems 
to have been held in Bernard v. Bou- 
gard, Barring. Ch. 143, and Coppage 



V. Bamett, 34 Miss. 621; Wrightsman 
V. Rogers, 239 Mo. 417; Love v. Hen- 
drick, 86 Conn. 481; Frorer v. Nichol- 
son, 181 111. App. 38. 

2 Baker v. Vining, "^30 Me. 127; 
Wheeler v. Kirtland, 23 N. J. Eq. 22; 
Reynolds v. Morris, 17 Ohio St. 510; 
O'Donnell v. White, 18 R. I. 659; 
Lazarus s. Lazarus, 12 Hawaii, 369; 
Gulp V. Price, 107 Iowa, 133; Horton 
V. Amason, 195 Ala. 594; Gordon v. 
Claridy, 142 Ark. 186; Murphy ti. 
Claytion, 113 Gal. 153; Fox v. Shanley, 
94 Conn. 350; Briscoe w. Price, 275 
111. 63; Pollock v. Pollock, 223 Mass. 
382; Pickens v. Wood, 57 W. Va. 480; 
Neathery v. Neathery, 114 Va. 650; 
Ottt). Duffy, 246 Pa. 211. 

' Shoemaker v. Smith, 11 Humph.. 
81; Edwards v. Edwards, 39 Pa. 386. 

< Hill on' Trustees, 93 Adams Eq. 
34. In Crawford v. Jones, 163 Mo. 
577, it was held that instead of a de- 
cree that a resulting trust will arise 
in proportioji to the amount paid, 
the chancellor may decree a lien on 
the whole for the amount. 



CH. III.] IMPLIED TRUSTS. ^ 161 

pays the whole consideration, no trust will result m his favor, 
-but he will only have a right.of contribution.^ 

It is not necessary that the consideration which moves 
from the cestui que trust should be money; it may consist of 
anything of value; and a trust will be decreed in favor of 
him who is the source of the consideration, whether it be 
lands, goods, money, securities, or credit." 

82. Statute of Frauds. " 

The language of the Statute of Frauds upon the subject of 
resulting trusts is that, "where any conveyance shall bee 
made of any lands or tenements, by which a trust or con- 
fidence shall or may arise or result by the implication or 
construction 6f law, or bee transferred or extinguished by act 
or operation of law, then and in every such case, such trust 
or confidence shall be of the like force and effect as the same 
would have beene if this statute 'had not beene made." * 
It will be observed that the statute speaks of "any convey- 
ance * ■* * by which a trust shall arise." It has, accordingly, 
been held that a resulting trust cannot arise unless some 
transmission of title has taken place. Thus in a Minnesota 
case, where the statute abolishing resulting trusts, never- 
theless preserves them in favor of the existing creditors of the 
person paying the consideration, it was held that no trust 
would result where there has-been no actual conveyaiice by 
the person from whom the debtor has purchased.* 

It is also essential to a resulting trust that the money 
should be paid at the time of the purchase; a subsequent 
payment cannot raise a trust.' This principle, however, is 

1 Sugden V. and P. 700 (8th Am. ' May v. May, 161 Ky, 114. "A bond or 
ed.). But see Ward ». Ward, 59 mortgage may be given for the deed." 
Conn. 188. - Casciola v. Donatelli, 218 Pa. 624. 

2 Blodgett V. Hildreth, 103 Mass. ' Stat. 29 Car. II., c. 3, § 8. 



484; Clark v. Clark, 43 Vt. 685 
Blauvelt v. Ackerman, 20 N. J. Eq 
141; Peabody v. Tarbell, 2 Cush. 226 
1 Lead. Cas. Eq. 334 (4th Am. ed.) 
Sullivan v. Sullivan, 86 Tenn. 376 
Hinshaw v. Russell, 280 111. 235 



* Durfee v. Pavitt, 14 Minn. 430. 
See, also, Jackson v. Morse, 16 Johns. 
R. 197; Green v. Drummond, 31 Md. 
81. 

' Foster v. The Trustees, 3 Ala. 302 ; 
Long V. King, 117 Ala. 423;,Mahorner 



152 



IMPLIED TRUSTS. 



[PAKT I. 



not applicable to resulting trusts of the second kind, i. e., 
where a trustee buys property in his own name, but with 
trust funds. ^ 

Resulting trusts will not arise against the positive provi- 
sions of a statute, or in contravention of public policy. 
Thus, it has been decided under the EngUsh registration acts, 
that the doctrine is not applicable to the case of a vessel, 
purchased and paid for by one man, but registered in the 
name of another.^ And so, too, a resulting trust cannot be 
enforced by an alien in opposition to statutes forbidding or 
circumscribing his right to hold property.' 

And if the title to property is taken in the name of a third 
party for the purpose of defrauding the creditor of the party . 
who pays the purchase-money, equity will not assist him in 
enforcing a resulting trust, for to do so would be to aid a 
fraud.* 

The interest of the real purchaser, however, will be subject 
to the claims of his creditors.* 



V. Harrison, 13 Sm. & Marsh. 53; 
Barnard v. Jewett, 97 Mass. 87; Tun- 
nard v. Littell, 23 N. J. Eq. 267; 
Capers v. McCaa^ 41 Miss. 488; Fred- 
erick V. Haas, 5 Nev. 389; Botsford 
V. Burr, 2 Johns. Ch. 408; Nixon's 
Appeal, 63 Pa. 282; Purdy v. Purdy, 
3 Md. Ch. 547; Latham v. Henderson, 
47 111. 185; Rogers v. Murray, 3 
Paige, 390; Perry on Trusts, § 133; 
Smith V. Turley, 32 W. Va. 14; First 
National Bank v. Campbell, 2 Colo. 
App, 271; Whitley v. Ogle, 47 N. J. 
Eq. 67; Thum v. Wolstenholme ', 21 
Utah, 446; Williams v. Wager, 64 Vt. 
326; Seller v. Mohn, 37 W. Va.^ 507; 
lynch V. Herrig,'32 Mont. 267; Lord 
V. Reed, 254 111. 358; Metropolitan 
Bank v. Perry, 259 111. 183; Mussel- 
man V. Myers, 240 Pa. 5; Coons «. 
Coons, 106 Va. 580; Phillips v. Phil- 



lips, 81 N. J. Eq. 459. See note 1, 
page 149. 

1 Haney v. Legg, 129 Ala. 619. 

2 Hill on Trustees, 93, 94. See Hoar 
V. Hoar, 48 Hun, 314. 

' Leggett V. Dubois, 5 Paige, 114; 
Hubbard v. Goodwin, 3 Leigh, 492; 
Perry on Trusts, § 131; Sugden V. 
and P. 701; Zundell v. Gess, 73 Tex. 
144. 

4 Ford V. Lewis, 10 B. Mon. 127; 
Proseus v. Mclntyre, 5 Barb. 425; 
Baldwin v. Campfield, 4 Hals. Ch. 
891; SeU v. West, 125 Mo. 621; Hard- 
ware Cp. V. Horn, 146 Mo. 12^; 
Higginbotham - v. Boggs, 234 Fed. 
256. 

"Guthrie v. Gardner, 19 Wend. 
414; Kimmel v. McRight, 2 Pa. 38; 
HiU on Trustees, 164 (4th Am. ed.); 
Kline v. McDonnell, 62 Hun, 177. 



CH. III.] 



IMPLIED TRUSTS. 



153 



83. Parol evidence admissible. 

It must be remembered that the trusts now under consid- 
eration rest upon presumption merely, and that this presump- 
tion is not one juris et de jure, but of fact merely, and open 
to rebuttal. All the facts and circumstances attendant upon 
the transaction may be proved ior the purpose of showing 
what the intention of the parties really was; ^ as that the 
nominal purchaser was the real beneficiary, that the pre- 
tended owner was of such mean circumstances as to make it 
impossible for him to have been the purchaser," that the 
purchase-money was advanced by the party paying it as a 
loan to the party ii> whose name the legal title was taken, a!nd 
not for the purpose of acquiring the ownership himself, and 
the like. Hence, it is well settled that parol evidence is 
admissible both to create and to rebut the presumption of a 
resulting trust.' Parol evidence i,s admissible to establish a 
trust in contradiction of the terms of a deed; ^ and even (it is 
now held) after the death of the ijonunal purchaser.^ 



• Byers v. Danley, 2 Ark. 88; Zim- 
merman V. Barber, 176 Pa. 1; Harris 
V. EUiott, 45 W. Va. 245; Lutz v. 
Matthews, 37 Pa. Sup. 354. 

2 Willis V. Willis, 2 Atk. 71; Sugd. 
V. and P. 702 (8th Am. ed.); Farrell 
». Lloyd, 69 Pa. 247; Bush v. Stanley, 
122 lU. 406; though see Balbec v. 
Donaldson, 2 Gr. Gas. 459; Kline v. 
Ragland, 47 Ark. Ill; Salisbury v, 
Clarke, 61 Vt. 453. 

5 Boyd V. MqLean, 1 Johns. Ch, 582; 
Kendall v. Mann, 11 Allen, 15; G<Joley 
V. Cooley, 172 l^ass. 476; De-Peyster 
"v. Gould, 3 N. J. Eq. 480; Swinburne 
V. Swinburne, 28 N. Y. 568; Liver- 
more V. Aldrich, 5 Gush. 431; HoUis 
V. Hayes, 1 Md. Gh. 479; Dryden v. 
Hanway, 31 Md. 254; Bank of United 
States w; Garrington, 7 Leigh, 566; 
McGuire ». McGowen, 4 Dess; 486; 
Linnel v. Hudson, 59 S. G. 283; Let- 
cher V. Letcher, 4 J. J. Marsh, 593; 
Faris v. Dmm, 7 Bush, 276; Greed v. 
Lancaster Bank, 1 Ohio St. 1; Lewis 
V. White, 16 Ohio St. 444; ElUott «. 



Armstrong, 2 Blackf. 198; Sandford 
V. Weeden, 2 Heisk. 71. See Shelby 
Tardy, 84 Ala. 327; Booth v. Lennox, 
45 Fla. 191; Montgomery f.' Mont- 
gomery, 2 Hawaii, 563; Berry v. 
French, 24 Golo. App. 519; Lord v. 
Reed, 254 111. 350; Larisey v. Larisey, 
93 S. G.' 450; Fort Worth v. Bank, 
261 Ted. 817; Eichoff v. Scott, 137 
Ark. 170; Baughman v. Baughman, 
283 111. 55; Watters v. R. Go., 141 
Minn. 480; Garson v. Painter, 69 
Pa. , Sup. 495; Getenich v. Fuyich, 
41 R. I. 107; Brown v. Kausche, 98 
Wash. 470. 

* Buck V. Pike, 2 Fairfield, 9; Page 
V. Page, 8 N. H. 187; Pinney v. Fel- 
Iqws, 15 Vt. 525; Peabody v. Tarbell, 
2 CuSh. 232; note to Dyer v. Dyer, 
1 Lead. Gas. Eq. *213; Neyland v. 
Bendy, 69 Tex. ,711; Howard v. 
Howard,/ 52 Kan. 469. 

'Boyd V. McLean, IJohnsl Gh. 
582; McGammon v. Pettifet, 3 Sneed, 
242; Fausler v. Jones, 7 Ind. 277; 
Williams v. HoUingsworth, 1 Strob. 



154 



IMPLIED TRUSTS. 



[PABT I. 



Parol evidence is also admissible against the answer of the 
nominal purchaser, although the testimony to establish a 
trust in such a case must be very strong.^ 

To establish a trus^ by parol, the evidence must be full, 
clear, and convincing; ^ though the application of this rule 
will, of course, be modified by circimistSnces.' 

Where the purchase-money is paid by one man, and the 
title taken in' the name of another for fraudulent purposes, 
e. g., in order to defeat or delay creditors, equity (as already 
stated) will not assist the perpetrator of the fraud, and conr 
sequently will decline to enforce the trust which would other- 
wise result, were the transaction a bona fide one, for his ben- 
efit.^ This is only the application of the maxim that he who 
comes into equity must do so with clean hands; as will be 



Eq. 103; Perry on Trusts, § 138; 
Richardson v. Taylor, 45 Ark. 472. _ 

' Boyd V. McLean, 1 Johns. Ch. 
582; Page v. Page, 8 N. H. 187; 
Moore v. Moore, 38 N. H. 382; El- 
liott V. Armstrong, 2 Blackf. 199; 
Jenison v. Graves, 2 Blackf. 441; 
Blair v. Bass, 4 Blackf. 540; Snelling 
V. Utterback, 1 Bibb, 609; Larkins v. 
Rhodes, 5 Porter, 196; Enos v. Hun- 
ter, 4 Gilman, 211; Smith v. Sackett, 
5 Gilman, 544; Hill on Trustees (4th 
ed.), 133. 

2 Baker v. Vining, 30 Me. 127; 
Boyd V. McLean, 1 Johns. Ch. 582; 
Fidelity, etc., Co. v. Moore, 194 Pa. 
617; Haupt v. linger," 222 Pa. 439; 
Paringer v. Ramsay, 2 Md. 365; Jeni- 
son V. Graves, 2 Blackf. 440; Holder 
V. Nunnelly, 2 Cold. 288; White v. 
Sheldon, 4 Nev. 280; Frederick v. 
Haas, 5 Nev. 389; Greer v. Baugh- 
man, 13 Md. 257; Phelps v. Seely, 22 
Gratt. 589; Kendall v. Mann, 11 
/Allen, 15; Olive w. Dougherty, 3 
Green (la.), 371; Miller v. Stokely, 
5 Ohio St. 194; Tunnard v. Littell, 



23 N. J. Eq. 267; Loften ». Sterrett, 
23 Fla. 565; Smith v. Turley, 32 W. 
Ya. 14;~Oregon Lumber Co. v. Jones, 
36 Oreg.-80; Rice v. Rigby, 7 Idaho, 
116; Doane ». Dunham, 64 Neb. 135; 
Carter v. Carter, 14 N. D. 66;. Johns 
V. Carroll, 107 Mdj. 437; Boughm'an 
V. Boughman, 69 Ohio St. 273; Dol- 
lar Savings Fund ».- Union Trust Co., 
223 Pa. 286; Jackson v. Jack'son, 149 
Ga. 803; Wright v. Wright, 189 la. 
921; Deaver v. Cooper, 189 Ky. 366; 
Hartley v. Hartley, 279 111. 593; 
Harris v. Harris, 178 N. C. 7; Brucker 
V. De Hart, 106 Wash. 386;, Keith v. 
Wheelef, 105 Ark. 323; Fagan v. 
Troutman, 25 Colo. A. 251; Schmidt 
V. Scanlan, 32 S. D. 612. 

' Snell V. Elan, 2 Heisk. 82. 

< Baldwin v. Campfield, 4 Halst. 
Ch. 891; Vanzant ». Davies, 6 Ohio 
St. 52; Murphy w. Hubert, 16 Pa. 50; 
Brantley v. We^t, 27 Ala. 542. See, 
also, Leggett v. Dubois, 5 Paige, 114; 
Philips t). Crammond, 2 Wash. 
C. C. 441; Alsworthw. Cordtz, 31 
Miss. 32. 



CH. III.] IMPLIED TRUSTS. . 155 

found more fully explained hereafter under the head of 
Frauds.! 

84. Advancements. 

An exception to the general doctrine of resulting trusts oc- 
curs in the case of advanceinents. 

■ Advancement is a term which has, in law, several mean- 
ings. Its signification in the present connection is a gift 
from a parent to a child, which is supposed to be intended 
when the pijrchase-money is paid by the parent, and the 
conveyance is taken in the name of the child. The ordinary 
presumption of a resulting trust, already described, is in 
such a case rebutted by the supposed intention to benefit 
the child; and instead of the latter holding as trustee for 
the pareM, he will be construed to take beneficially by ad- 
vancement.'' Dyer v. Dyer, already cited,' is an authority 
upon" this particular branch of theilaw of resulting trusts. 
In that case copyhold premises were granted to Simon Dyer 
and Mary his'wife, and his son William, to take in succession 
for their lives, and to the longest liver of them, the purchase- 
money having been paid by the father. The wife died, and 
then/ the father, leaving surviving him William and another 
son, to whom he had devised the copyhold estate. Upon 
a bill filed by this younger son against his brother William, 
it was held that the latter could not be treated as a trustee 
of the legal title for the benefit of the father's devisee, but 
that he took beneficially by way of advancement; and the 
bill was dismissed. 

The doctrine of advancement is firmly established in the 
United States as well as in England; and the general rule 
may be stated to be that a purchase in the name of a child 
will be regarded prima fade as an advancement, and not as 

* Poll, § 208, and authorities cited, under consideration, is in accordance 

' As the general doctrine of re- with, the legal principle that where 

suiting trusts is analogous to the there is a feoffment froin a father to 

common-law rule that where there is a son, the consideration of blood 

a feoffment without consideration would settle the use on the son. 

the use results to the feoffer, so. the Grey-o. Grey, 2 Swaps. 598. 
Mception as to advancements, now ' Ante, p. 146, n. 2. 



156 



IMPLIED TRUSTS. 



[PAKT I. 



a resulting trust for the father.^ The rule applies to other 
relations than those of father and child. A purchase by any- 
one in the name of another to whom the purchaser stands' in 
loco parentis Will he treated as an advancement. Thus the 
rule has been held to apply to grandfather and grandchild; * 
to mpther and daughter or son; ^ to husband and wife; * to 
a purchase in the name of a son-in-law; * and to a deceased 
son's widow,* and, in short, to a purchase in the name of 
anyone to whom the party paying the consideration-money 
stands in loco parentis.'' A purchase in the name of a brother 
will not be considered as" an advancement,* unless the pur- 



> Page V. Page, 8 N. H. 187; Kern 
V. Howell, 180 Pa. 315; Taylor v. 
James, 4 Dess. 1; Douglass v. Brice, 
4 Rich. Eq. '322; Astreen v. Flanagan, 
3 Edw. Ch. 279; Partridge v. Havens, 
10 Paige Ch. 618; Welton v. Divine, 
20 Barb. 9; Doyle v. Sleeper, 1 Dana, 
536; Taylor v. Taylor, '4 Gilin. 303; 
Cartwright v. Wise, 14 111. 417; Shep- 
herd V. White, 10 Tex. 72; Alexander 

y. Wafram, 17 Mo. 236; Baker v. 
Leathers, 3 Ind. 558; Long'w. King, 
117 Ala. 423; Hallenback v. Rogers, 
57 N. J. Eq. 199; Goodwin v. Parnell, 

. 69 Ark. 629; Perry on Trusts, §§ 143 
et seq.; Hill on Trustees, 97 et seq.; 
Feiguson v. Booth, 128 Tenn. 267; 
Lezinsky v. Company (Cal.), 196, 
P. 884; Hartley v. Hartley, 279 111.' 
593; Prisco v. Prisco, 90 N. J. Eq. 289; 
Duffy V. Wilson, 180 N. Y. S. 669; 
Keith V. Wheeler, 105 Ark. 318; 
Wilder v. Wilder, 138 Ga. 573; Mc- 
Ginnis v. McGinnis, 159 Iowa, 394; 
Young V. Holland, 117 Va. 433. 

2 :^brand v. Dancer, 1 Coll. Ch. 
265 n. 

3 Murphy v. Nathans, 46 Pa. 508; 
Euans v. Curtis, 190 111. 197; Sayre 
V. Hughes, L. R. 5 Eq. 376; though 
see In re de Visme, 2 DeG., J. & Sm". 
17; Bennet v. Bennet, L. R. 10 Ch. 
D. 474 {per Sir G. Jessel); Cooley v. 
Cooley, 172 Mass. 476. 

'Guthrie v. Gardner, 19 Wend. 
414; Whitten v. Whitten, 3 Cush. 194; 



Viers v. Viers, 175 Mo. 444; Kline v. 
Ragknd, 47 Ark. Ill; Whitley v. 
Ogle, 47 N. J. Eq. 67; Fatheree v. 
Fletcher, 31 Miss. 265; Light v. Zel- 
ler, 144 Pa. 582; Davis t». Davis, 18 
Col. 66; Long v. McKay, 84 Me. 
199; Deck v. Tabler, 41 W. Va. 332 
Hamilton v. Hubbard, 134 Cal. 603 
Crumrine v. Crumrine, 50 W. Va. 
226; Rowe v. Johnson, 33 Col. 469 
Van Etten w. Bank, '79 Neb. 632 
Deuter v. Deuter, 214 111. 308; Fagan 
V. Troutman, 25 Colo. A. 251; Bach- 
seits V. Leichtweis, 256 111. 357; Cles- 
ter V. Clester, 90 Kan. 638; McGee v. 
McGee, 81 N. J. Eq. 190; Ferguson 
V. Booth, 128 Tenn. 259; Jackson 
V. Jackson, 149 Ga. 803; Wright i;. 
Wright, 189 la. 921; Powell v. Mac- 
kenzie ^(Md.), 112 A. 290; Sigel v. 
Sigel (Mass.), 131 N. E. 316; Ro- 
berge v. Roberge (N. D.), 180 N. W. 
15. See Madsen v. Madsen, 35 Cal. 
A. 487. 

' Baker v. Leathers, 3 Ind. 558; 
see Batstone v. Salter, L. R. 10 Ch. 
431; Richardson v. Seevers, 84 Va. 
259. 

"Hiester v. Hiester, 228 Pa. 
102. 

' See Jackson v. Feller, 2 Wend. 
465; Roberts's Appeal, 85 Pa. 84; 
Harris v. Elliott, 45 W. Va. 245; 
Keith V. Wheeler, 105 Ark. 323. 

'Edwards v. Edwards; 39 Pa. 
377. 



CH. III.] IMPLIED TRUSTS, 157 

chaser stands in loco parentis towards his brother.* And 
where land is, purchased with the money of a wife and title 
taken in the namq^of the husband, there will be no presump- 
tion of a gift to the husband. A resulting trust in favor of 
the wife will be implied.'' 

It seems to be doubtful whether a purchase in the name of 
an illegitimate child is to be treated as an advancement; 
although the weight of authority is in favor of so treat- 
ing it.' 

Where money is advanced by a son and the title taken in 
the name of the father, the presumption will be in favor of a 
resulting trust, and. not an a'dvancement,* and where* land 
was conveyed to ahusband, the father of the wife paying the 
purchase-money and declaring it to be the advancement, it 
was held that a trust resulted in favor of -the wife.^ 

Whether a purchase made by a father in the joint names of 
himself and son will be considered as an advancement has 
been a doubtful question; but the more recent authorities 
are in favor of considering it an advancement.* 

The presumption of advancement being, as Chief Justice 
Eyre said in Dyer v. Dyer, a mere circumstance of evidence, 
may be rebutted by other evidence or other presumptions 
tending to show an intention that the child was to hold as 

' Forrest v. Forrest, 34 L. J. Ch. M. 515; Elrod v. Cochran, 59 S. C. 

428. ' 467. ' 

"Kline »./Ragland, 47 Ark. 115; ■•Howell «. Howep, 2 McCart. 75 

Thomas v. Stanidford, 49 Md.* 181,-^ Brownfieldi). Bookout, 147 Ark. 555 

Moss V. Moss, 95 111 449; Catherwood champUn v. Champlin, 136 111. 309 

«^ Watson 65 Ind. 576; Berry v. q,^^^ „ q, 

Wiedman, 40 W. Va. 36 Carter v. „ , tt . „eo m m ^ ^ 

Becker, 69 Kan. 524;-Cor;'s Appeal, ^^ff-^ri' . , t,"' , ''^^'l"', 

62 Conn. 403; Wright v. Wright, 242 EUiott v. Merchants' Bank, 21 Cal. 

111. 78; Fagan v. Troutman, 25 Colo. App. 536. 

A. 251; Phipps v. Markin (Mo.), 227 ' Peiffer v. Lytle, .58 Pa. 386; but 

S.- W. 870; Mumpower v. Castle see Richardson «. Seevers, 84 Va. 259; 

(Va.), 104 S. E. 706; Hinshaw v. and Wacker v. Wacker, 147 Mo. 246, 

Russell, 280 111, 235; Glover v. where the evidence was held insuffi- 

Laundiy Co. 235, Mass. 330; Deese cient to establish a resulting trust for 

V. Peese, 176 N. C. 527. the daughter, 

'Beckford v. Beckford, Lofft's "Grey v. Grey, 2 Swanst. 599; 

Reps. 490; Soar v. Foster, 4 K. & J. Williams v. Williams, 32 Beav. 370; 

152; Tucker v. Burrow, 2 Hem. & Sugd. V. and P. 704 (8th Am. ed.). 



158 IMPLIED TRUSTS. [PAET I. 

a trustee.* Thus the relation of solicitor and client has been 
held to prevent the presumption of an advancement which 
would otherwise have arisen,^ and where the deed is taken 
in the name of a, wife for the purpose of defrauding the hus- 
band's creditors, a trust will result to the husband so as to 
make the property liable to his debts.' 

86. Tnists of this kind abolished in certain states. 

It remains to be noticed that resulting trusts of the kind 
now under, discussion have been abolished in certain states 
of the Union by statute. Such is the case in New York/ 
Michigan/ Wisconsin,* Kansas,'^ Indiana, Kentucky, and. 
Minnesota.^ But an exception is made in cases where the 
title is taken in the name of the nominal purchaser without 
the knowledge of the real purchaser.^ 

86. Piirchases by Trustees 'with Trust Funds: Following 
Trust Funds. 
The second class of resulting trusts is where a trustee or 

'Shepherd v. White, 10 Tex. 72; paid at the date of the father's death 
Proseus v. McIntjTe, 5 Barb. 425; were not to be treated as an ad- 
Butler V. Insurance Co. 14 Ala. 777; vancement. 

Cotton V. Woods, 25 la. 43-; Hodgson ' Belfordu. Crane, 16 N. J. Eq. 265; 

V. Macy, 8 Ind. 121; McClintock ». post, Part II., Chap. II. 

Loisseau, 31 W. Va. 865; Bruce v. * Weigert b1 Schlesinggr, 150 N. Y, 

Slemp, 82 Va. 352; Cooley v. Cooley, App. Div. 765; Leary v. Corvin, 181 

172 Mass. 476; Bickford v. Est. of N. Y. 222. 

Bickford, 68 Vt. 525; Culp v. Price, ^ 3 Coihp. Laws § 8835-7; Crane 

1071a. 133; Brennaman!;.SchelI, 212 v. Read, 172 Mich. 642; Beidler w. 

III. 356;^Lahey v. Broderick, 72 N. H. City Bank, 172 Mich. 381. 

180; Tliomas v. Thomas, 79 N. J. ' « Friedrich v. Huth, 155 Wis. 196. 

Eq. 461; Wilder v. Wilder,- 138 Ga. 'Kansas Gen. Stat. 1901, §7880; 

573. . Anderson v. Hultberg, 247 Fed. 

2 Garrett v. Wilkinson, 2 DeG. & 279; Lyons v. Berlau, 67 Kan. 426. 

Sm. 244. See, al^o, Wallace w. Bow- *Toney ti. Wendling, 138 Ind. 228; 

ens, 28 Vt. 638; Dudley «;. Bosworth, Durfee v. Pavitt, l4 Minn^ 424; 

10 Humph. 12; Jackson v. Matsdorf, Smith v. Smith, 121 S. W. 1002(;Ky.); 

,11 John. 91; Taytor -v. Taylor, 4 Stett ». Lumber Co., 96 Minn. 27. 

Gilm. 303. See, in this connection, ° McCreary w. McCreary, 90 Mich. 

In re Whitehbuse, 37 Ch. D. 685; 478; Woer^w.Rademacher, 120N. Y. 

where a father became, jointly with v 62; Young v. Allen, 207 Fed. 318; 

his son, the maker of certain promis- Miller v. McLin, 147 Ky. 248; Scott- 

Bory notes given in part payment of v. Dilley, 53 Ind. A. 100; Friedrich" 

real estate conveyed to the son, and v. Huth, 155 Wis. 196. 
where it was b^ld.tjiat the jiotes \m- 



UH. III.] 



IMPLIED TRUSTS. 



159 



other fiduciary purchases property with, trust funds and 
takes the title in his own name. In such a case a trust will, 
result by operation of law -for the benefit of the trust estate, 
as the trustee will be presumed to have intended that the 
purchase should enure to the benefit of the esta^te. Trust, 
fimds may in this way be followed into any property into 
which they have been invested or converted by the trustee ; 
and this is constantly done by the courts for theiienefit and 
redress of injured cestuis que trustent.^ 

The rule above stated applies to purchases by a trustee,'' 
by a partner,^ an agent appointed to buy,^ or trustees of a 
corporation,^^ or an executor or administrator,^ or a commit- 
tee of a lunatic,^ or a guardian,* or a husband purchasing 
with avails of his wife's separate estate,' or a mortgagor, i" 

Des. 77; FoUansbe v. Kilbreth, 1^ 

111. 522; Chastain v. Smith, 30 Ga. 96; 

Wilner v. Ruckner, 112 Ala. 360. " 

5 Methodist Church v. Wood, 5 



' Perry on Trusts, § 127; Atkinson 
V. Waid, 47 Ark. 533; Frazier v. 
Foreman, 269 Pa. 13; Third Nat. 
Bank of St. Paul v. Stillw. Gas Co., 
36 Minn. 75; Maher v. Aldrich„205 
111. 242; Taber v. Bailey, 22 Gal. App. 
617; Harrison v. Tierney^, 254 111. 
271; Bowman v. Hprn (Mass.), 
131 N. E. 334. 

2 Oliver v. Piatt, 3 How. 401; 
Harrisburg Bank ». Tyler, 3 W. & 
S. 373; Martin v. Greer, 1 Geo. 
Dec. 118; Moffit v. McDonald, 11 
Humph. 457; Day v. Roth, 18 N. Y: 
448; Lathrop v. Gilbert, 10 N. J. Eq. 
345; Pugh V. Pugh, 9 Ind. 132; Good- 
man V. Smith, 94 Neb. 227; Gale v. 
Harby, 20 Fla. 171. 
- ' Philips V. Crammond, 2 Wash. C. 
C. 441; Piatt ». Oliver, 2 McLean, 
267; 3 How. 401; Riddle v. White- 
hill, 135 U. S. 634; King v. Hamilton, 
16 111. 190; Coder v. Huling, 27 
Pa. 84; Baldwin, v. Johnson, Saxt. 
441; Edgar v. Donnally, 2 Munf. 387; 
■Pugh V. Currie, 5 Ala. 446; Crone v. 
Crone, 180 111. 599; Case v. Seger, 4 
Wash. 492. 

* Church w.-Sterling, 16 Conn. 388; 
Eshleman v. Lewis, 49 Pa. 415. See, 
also, Hutchinson ». Hutchinson, 4 



Hamm. 283; Palmetto Lumber Co. v. 
Risley, 25 S. C. 309. 

* Claussen v. La Franz, 1 Clarke, 
226; McCrory v. Foster, 1 Clarke, 
271; Wallace v. Duffield, 2 S. & R. 
521; Harper t).' Archer, 28 Miss. 212; 
Phillips V. Overfield, 100 Mo. 466; 
Zunkel v. Colson, 109 Iowa, 695. 

' Reid V. Fitch, 11 Barb. 399. 

'Caplinger v. Stokes, Meigs, 175;' 
Bancroft v. Consen, 13 Allen, 50; 
Johnson V. Dougherty, 18-N. J. Eq. 
406; Durling v. Hammer, 20 N. J. 
Eq. 220; Turner v. Petigrew, 6 
Humph. 438; Shelton v. Lewis, 27 
Ark. 190; Schlaefer v. Corson, 52 
Barb. 510; Alspaugh v. Adams, 80 
Ga. 345; Hughes v. White, 117 Ind. 
470; Thompson «. Hartline, 105 
Ala. 263; Pillars v. McConnell, 141 
Ind. 670; Hill v. True, 104 Wis. 294> 
Hardy v. Hardy, 149 Ga. 371;- 
Snyder v. Snyder, 280 111. 467; 
Hicks V. Sage, 104 Kan. 723. 

' Methodist Church v. Jaques, 1 
Johns. Ch. 450; 3 Johns. Ch. 77; Fill- 
man V. Divers, 31 Pa. 429; Marsh a. 



" McLarrenw. Brewer, 51 Me. 402. 



160 



IMPLIED TRUSTS. 



[part I. 



And the rule applies not only to purchases, but to deposits 
of money in a bank, to assignments, to transmissions to per- 
sonal representatives, and to all cases in which the property 
of the beneficiaries can be traced in spite of any transmuta- 
tion of form or change of possession.' 

A resulting trust will also arise when a trustee mixes trust 
funds with his own, for it will then become the trustee's 
duty to establish how much of his own money went to the 
purchase, or the cestui que trust will take the whole. This is 
in accordance^ with the usual rule upon the subject of con- 
fusion of goods. ^ It has been doubted, however, whether 



Marsh, 43 Ala. 677; Click v. Click, 

1 Heisk. 607; Sandford v. Weeden, 

2 Heisk. 71; Miller v. Edwards, 7 
Bush, 394; Resor v. Resor, 9 Ind. 347 
Barron v. Barron, 24 Vt. 375; Prit- 
chard v. Wallace, 4 Sneed, 405 
Wallace v. McCullough, 1 Rich. Eq, 
426; Dickinson v. Codwise,' 1 Sandf, 
(Ch.) 214; Pinney v. Fellows, 15 Vt, 
524; Lathrop v. Gilbert, 10 N. J. Eq 
345; Miller e. Slupsky, 158 Mo. 643 
Bible V. Marshall, 1(^3 Tenn. 324. 

^' See Farmers' ai}d Mechanics' 
Bank v. King, 57 Pa. 202; Milligan's 
Appeal, 82 Pa. 389; Moses v. Mur- 
gatroyd, 1 'Johns. Ch. 128; Kirk- 
Patrick v. McDonald, 11 Pa. 387 
Philips V. Crammond, 2 W. C. C. R, 
441; Pierce, «. M'Keehan, 3 W. & S, 
280; Third Nat. Bk. of St. Paul v. 
Stillwater Gas Co., 36 Minn. 75 
Taylor v. Plumer, 3 M. & S. 562, 574 
Pennell v.' Deffdl, 4 DeG., M. & G 
389; Hancodk v. Smith, 41 Ch. D. 456 
Story's Eq., §§ 1258-1359; Fir^t Na- 
tional Bank v. Bache, 71 Pa. 213 
Moore v. Williams, 62 Hun, 55 
Union Nat. Bank v. Goetz, 138 III 
, 127; Carley v. Graves, 85 Mich. 483 
Farmers' and Traders' Bank v. Mil- 
ling Co., 1 So. Dak. 388; State v. 
' State Bank, 42 Neb. 896; Cushman v. 
Goodwin, ' 95 Me. 353; Tierman's 
Ex'r V. Security B. & L. Ass'n, 152 
Mo. 135; Teel v. Hilton, 21 R. I. 227; 
Hyland t». Roe, 111 Wis. 361; Lowe 
V. Jones, 192 Mass. 94; City ot Lin- 



coln ». Morrison, 64 Neb. 822; Board 
of Trustees v. Postel, 121 Ky. 67; 
MathewsOn v. Wakelee, 83 Conn. 75; 
United States Bank ». Centralia, 
240 Fed. 95; In re A. Bolognesi, 
254 Fed. 773; Mq,rtin v. Smith, 33 
Ida. 692; Evans v. Evans, 200 Ala. 
329; People v. Deposit Co., 175 Cal. 
756; Rich v. Roberts, 103 Kan. 116; 
Stokes V. Trust Co. (N. J.), 108 
A. 863; In re Campbell, 53 Utah, 
487; County Ct. v. Cottle (W. Va.), 
94 S. E. 948. 

"See Hill on Trustees, 148 (4th 
Am. ed.), note; Frith v. Cartlandj 34 
L. J. Ch. 301; PenneU «. DeffeU, 4 
DeG., M. & G. 372; Ex -parte Dale, 
11 Ch. Div. 772; In re Hallett's Est., 
13 Ch. Div. 696; McAllister o. 
Comm., 30 Pa. 536; School v, Kirwin, 
25 111. 73; Kip v. Bank of N. Y., 10 
Johns. 65; Bohle v. Hasselbroch, 
64 N. J.-Eq. 334; Tufts v. Latshaw, 
172 Mo. 359; McLarren v. Brewer, 
51 Me. 402; Seaman v. Cook, 14 111. 
505; Russell v. Jackson, lO Hare, 209; 
Hudson V. Hawkins, 79 Ga. 274; 
Sherwood v. Cent. Mich. Savings 
Bank, 103 Mich. 109; Piano Manuf. 
Co. V. Auld, 14 S. Dak. 512; Hutchin- 
son V. Bank, 145 Ala. 196; Yellow- 
stone Co. V. Savings Bank, 46 Mont. 
439; Waddell v. Waddell, 36 TJtah, 
435; Primeau v. Granfield, 184 Fed 
'482; WiUiams v. Floyd (Del.), 112 
A. 377; Kineon v. Bonsall,'185 N. Y. 
694; Clark b. Spanley, 122 Ark. 183. 



CH. m.] IMPLIED TRUSTS. 161 

the cestui qiie trust in such cases has anything more than a 
lien on the property to the extent of the money belonging 
to the trust estate; ^ but the general ruledn America is in 
favoi of a j-esulting trust.* , . 

Whether, thferefore, the property into which trust funds 
are sought to be traced has been wholly acquired, or whether 
it has been in part only .bought by such funds,' the rule is 
the same, and trust funds may be followed and the property 
■ stamped, wholly or partially, with the trust. The leading 
case upon the subject of following trust funds is, perhaps, 
Hallett's Estate already cited.* There Hallett, a solicitor, 
held forgone Mrs. Cottr^U some Russian bonds, the interest 
of which he collected. He improperly sold the bonds, and 
put the money into his general account at his bankers. The 
sum thus deposited was £2200. Subsequently, Hallett paid 
into his account at his bankef'S other moneys of his own, 
increasing his balance to £3000. He died. It was held that 
the proceeds of Mrs. CottreU's bonds could be followed, and 
could be charged Upon th^ £3000 which stood to Hallett's 
credit at his hankers at the date of his death. The language 
of Sir George Jessel, M. R., in this case, furnishes a striking 
statement of the principles upon which the decision is based. 
"Supposing,," he says, "the trust money was 1000 sovereigns^ 
and the trusteie put them into a bag, and by mistake, or 
accident, or otherwise dropped a sovereign of his own into 

'Where a definite portton of the Holmesc. Gihnan, 138N. Y. 369 (see, 

purchase-money is paid ior by trust however, Matter of Hicks, 170 N. Y, 

funds, there will be a lien to the ex- 195); 7n re Stringer, 233 Fed. 799; 

tent of the trust funds used. Hum- County v. Bank, 46 Mont. 439: 

phreys v. Butler, 51 Ark. 354; Green Evan^ v. Evans, 200 Ala. 329 

V. Green, 56 S. C. 193. See Faulkner Humphreys v. Butler, 51 Ark. 351 

Hendy, 103 Cal. 15; Myers v. Warner v. ^Iorse, 149 Mass. 400 



Board of Education, 51 Kan. 87 
Myers v. Myers, 47 W. Va. 487 
Thum I). Wolstenhohne, 21 Utah, 
446; Bank v. Bank, 62 Kan. 788 
Bircher v. Walther, 163 Mo. 461 



Zundell v. Gess, 73 Tex. 144; Shaffer 
V. Fetty, 30 W. Va. 248; Bitzer a. 
Bobo, 39 Minn. 18. In England, see 
contra, In re Pumfrey, 22 Ch. D. 261. 
See, also, In re Hallett's Est. (supra). 



Hewitt V. Hayes, 205 Mass. 356. , » 13 Ch. D. 696. See In re Hallett 

2 WaUace v. Duffield, 2 S, & R. 530; & Co., ex parte Blane, [1894] 2 Q. B. 

Wallace v. McCullough, 1 Rich. Eq. ^37, where the fund could not be fol- 

426; Day v. Roth, 18 N. Y. 456; lowed. 

11 



162 IMPLIED TKUSTS. [PAET I. 

the bag. Could anybody suppose that a judge in equity 
would find any difficulty in saying that the cestui que trust 
has a right to take 1000 Sovereigns out of the bag?" 

The doctrine of following trus.t funds is well recognized in 
America; and, indeed, it may be truthfully said that it has 
kept quite abreast, if not in advance of the English rule. The 
case of the Farmers' and Mechanics' Bank t;. King ^ is partic- 
ularly to be noted as a somewhat early recognition of the 
•doctrine, as it was afterwards stated by Sir George Jesse! 
in the language already quoted; and other and later examples 
of the same rule may be found in the decisions both of the 
federal and of state courts.^ The case of the Union Stock 
Yards Bank v. Gillespi© ^ not only illustrates the general rule, 
but the fact, also, th^t it extends to relations which savor 
of a fiduciary character, although they may not be those 
of trustee and cestui que trust; and the case of the American 
Sugar Refining Co. ?;. Fancher * is an example of the way in 
which the same rule has been applied in equity to relieve 
against\actual fraud; while a case in South Carolina may 
be cited as a ftirther illustration of the application of Sir 
George Jessel's remarks.^ 

Of course, where the trust funds cannot, as a matter of 
fact, be traced, the equitable titl§ of the cestui que trust 
fails," The trust funds, to be followed, must be traced to 

1 57 Pa. 202. « Bank v. Hotchkiss, 231 U. S. 50; 

= National Bank w. Ins. Co., 104 Pierson v. Phillips, 83 N. J.Eq. 60; 

U. S. 54; In re A. Bolognesi & Co., Wisdom v. Wisdom, 155 Wis. 434; 

254 Fed. 770. Lifter ». Earle Co., 72 Pa. Sup. 173; 

= 137 U. S. 411; Commercial Bank Hewitt v. Hayes, 205 Mass. 356; 

V. Armstrong, 148 U.. S. 50; Colum- Bradley v. Chesebrough, 111 Iowa, 

bian Bank's Estate, 147 Pa. 422. 126; Twohy Mercantile Co. v. Md- 

For cases in state courts, see note 1, bye, 83 Minn. 394; Morrison -v. 

p. 160, and note 2, p. 161, ante. See, Lincoln Savings Bank, S7 Neb. 225 

also, Englar t.. Offutt, 7a Md. 78; Bircher v. Walther, 163 Mo. 461, 

Continental Nat Bank v. '^eems 69 ^j^^ „ Commercial and Fanners 

m 111104 "■ ' Bank, 60 S. C. 122; Bank Commis- 

n45 N.'y. 552. See also Com ^'O'^e'^ "• Security Trust Co., 70 

Ex. Nat. Bk. v. Solicitors' Tr. Co., N. H. 536; Blake v. State Savings 

188 Pa. 330. Bank, 12 Wash. 619; Slater v. Oriental 

« Wulbem v. Timmons, 55 S. C. Mills, 18 R. I. 352; Ferchen v. Aradt, 

456. 26 Oreg. 121; Cecil Nat. 3ank ». 



CH. III.] IMPLIED TRUSTS. 163 

some particular property or some particular fund or account, 
for if they are mingled with general assets, indiscriminately 
and with nothing to identify them, they caimot be followed.^ 
ResultiQg trusts of the second class may be proved by 
parol.* 

87. Conveyance where trusit is not declared or fafls. 

The third of the classes into which resulting trusts have 
been divided embraces those cases in which there is a dis- 
position of property upon trust, but no trust is declared, or 
is only partially declared, or wholly or partially fails. ' ' There 
is no equitable principle more firmly estabUshed than that 
where a voluntary disposition Oi property by deed or will is 
made to a person as trustee, and the trust is not declared at 
all, or is ineffectually declared, or does not extend to the ' 
whole interest given to the trustee, or it fails either wholly 
or in part by lapse or otherwise, the interest so undisposed 
of will be held by the trustee, not for his own benefit, but as 
a resulting trust for the donor himself, or for his heir-at-law 
or next of Icin, according to the nattu-e of the estate." ' 

The rule above stated applies, it will be observed, to volun- 
tary dispositions, and not to those based upon a valuable 
consideration,* and it is called into operation in the case of 
wills more frequently than in deeds. The presuniption of a 
resulting trust is, indeed, stronger in a case of a disposition 
of property by conveyance inter vivos, thaxi in a testamentary 
disposition, which always implies bounty; ^ but the limita- 

Thurber, 8 U. S. App. 496; Jaffe v. Hotchkiss, 231 U. S. 57; Williams 

V. Weld, 155 App. Dfv. (N. Y.) v. Traat Co., 222 Mass. 378; Com- 

110; Moore v. Taylor, 251 III. 468. monwealth v. Trust Co., 250 Pa. 

. 1 See Freiberg v. Stoddard, 161 Pa. 378. - . 

259, and the remarks of Rice, P. J., * Lench v. Lench, 10 Ves. 517; note 

on pp. 261 and 263. Note also. City to Dyer v. Dyer, 1 Lead. Cas. Eq. 

ofSt. Paul »; Seymour, 71 Minn. 303; *215; Smith v. Turley, 32 W. Va. 

Ins. Co. V. Caldwell, ,59 Kan. 156; 14. 

PauI'B. Draper, 158 Mo. 197;Shute^w. ' Hill on Trustees, 113, 114; Casey " 

Hinman, 34 Oreg. 578; Witiston v. v. Casey, 161 App._Div. (N. Y.) 

Miller, 139 Ala. 259; Watts v. New- 427; Chater v. Carter, 238 U. S. 572. 
berry, 107 Va. 233; Union Bank i». * Brown v. Jones, 1 Atk. 191. 

Goetz, 138 lU. 127; Nat. City Bank » Sidney v. Shelly, 19 Ves. 358. 



1§4 IMPLIED TRUSTS. [PAB.l lo 

tions of beneficial interests are usually more precise and ex- 
haustive in deeds than in wills, and a case of an interest 
undisposed of is not therefore so likely to arise. ^ 

The plainest case of a; trust of the kind now attempted to 
be explained is that in which a gift is made, upon trust, but 
no trusts are declared. Of this a striking example is the case 
of the Corporation of Gloucester v. Wood,'' where a testator 
gave £200,000 to his executors "for the purpose I have 
before named," but no purposes had been named, and it 
was held that there was a resulting trust in favor of the 
residuary legatees. 

An insufficient declaration of trust will have the same 
effect as an entire failure to declare.' 

88. Where the beneficialiinterest is not exhausted. 

A more difficult question not infrequently arises in those 
cases in which the gift is made upon trusts which are effect- 
ively declared, but which do not exhaust the entire beneficial 
interest. Here, if the intention is plain that the donee is 
not to take the undisposed residue beneficially, there will, 
of course, be a resulting trust in favor of the next of kin, or 
the heir-at-law, according to the nature of the property; . 
but the difficult point to determine is whether the donee was 
intended to take the undisposed interest beneficially. Many 
authorities exist upon this point, and many fine distinctions 
have been drawn. InBarrs v. Fewkes,^ however, the result 
of the cases is thus stated by the (then) Vice-Chancellor, 
Wood: 1st, where there is a gift to A. to enable hirri to do 

* As an illustration of the question Ves. 522. See, also, Lomax v. Ripley, 

under a deed, see Smith v. Cooke, 3 Sm. & Giff. 48; King v. Mitchell, 

[1891] A. C. 297, and Witt v. Carroll, 8 Pet. 326 r Sheaffer's Appeal, 8 Pa.- 

37 So. Car. 388. 38. See, however, Benning v. Ben- 

' 3 Hare, 141; 1 H. L. Cas. 272. ning's Ex'rs, 14 B. Mon. 585. 
See, also, Schmucker's Estate t). Reel, ♦2Hem. &M. 60. See, also, Ell- 

61 Mo. 592, where the subject is care- cock v. Mapp, 3 H. L. Cas. 492; King 

fully discussed. Also Heidenheimer v. Denison,' 1 V. & B. 272; Williams 

V. Bauman, 84 Tex. 174, and Trinity v. Roberts, 4 Jur. n. s. 18; Sheaffer's 

M. E. Church v. Baker, 91 Md. 539. Appeal, 8 Pa. 38; Hill on Truatees, 

'Hill on Trustees, 116; Morice v. 119. 
Bishop of Durham, 9 Ves. 399; 10 



CH. III.]" IMPLIED TRUSTS. 165 

something, where he has a choice whether he will do it or 
not, then the gift is for his own benefit, the motive why it is 
given to him being stated; 2d, where you find the gift is 
for the general purposes of the will, then the person who 
takes the estate cannot take the surplus, after satisfying 
the trust, for his own benefit; and 3d, where a charge .is 
created by the will, the devisee takes the surplus for his own 
benefit, no trust being implied.' 

Another instance of the class of resulting trusts now under 
consideration is that which arises. out of the failure of a gift 
by lapse. Where, for example, a, testator declares a trust in 
favor of A., and A. dies in the testator's lifetime, the trustee 
will hold the property for the benefit of the testator's real 
or personal representatives, according to the nature of the 
property.^ So, too, where a gilt is void ab initio because of 
its violation of some statutory provision {e.g., the statutes 
against excessive- accumulations), or because of its illegal 
purpose, the interest which is thu& attempted to be illegally 
created will result for the benefit of the heir or next of kin^^ 

A resulting trust of personalty will not, however, arise 
where there is a residuary clause, because that clause ordi- 
narily includes all interest not disposed of at the time of 
the testator's death.' Where, however, the interest which 
fails constitutes, or forms a part of, the residuary estate, a 
resulting trust will take place.*" 

It is sometimes difficult to determine for whose benefit the 
resulting, trust takes effect,^ — that is to say, whether for the 
heir or next of kin. Thus, where real estate is directed, to be 
sold, and the preeeeds applied to certain purposes, and there 
is a.partial failure of purposes for which the sale was designed, 

' Hill on Trustees, 135, 136; Ban- Va. 810. See Franklin's Estate^ 
croft V. Russell,. 157 Mass. 47; Has- 150 Pa. 437, for a case in which the 
kins V. Kenday, 158 Mass. 224. court refused relief to the cestuis 



' Johnson v. Clarkson, 3 Rich. Eq 
305; Ford v. Dangerfield, 8 Rich. Eq, 
95; Drew v. Wakefield, 54 Me. 291 
Lusk V. Lewis, 32 Miss. 297; St: 
Paul's Ch. V. Att.-Gen., 164 Mass, 
188; Amory v. College, 229 Mass, 
374; Walters v. Iron Co., 201 Mich, 



S. W. 937; HeiskeU v. Trout, 31 W, 



qiie truslent under a resulting trust 
of this sort on the ground that the 
holder of the legal title (a munici- 
pality) could not administer a 
private trust. But see post, § 136, 
and notes. 

' Woohner's Est., 3 .Whart. 477. 



379; Bank v. Matlock (Tex.), 212 * Leake v. Robinson, 2 Meriv. 



392; HiU on Trustees, 136. 



166 IMPLIED TRUSTS. [PABT I. 

a question may arise whether the undisposed surplus will go 
to the next of kin ia its new condition of personalty, or to 
the heir in accordance with its original state. The general 
rule in England nowis that unless there is a conversion out 
and out and for all purposes, the heir-at-law will take. ^ In 
America, however, the rule is not so strongly in favor of the 
heir,* and where realty and personalty are mixed in a common 
fimd, and there is a partial failure of a beneficial interest by 
lapse, the trust which results will enure to the benefit of the 
personal, and not the real representative of the testator. 

89. Exceptions in favor of charities. 

An exception to the doctrine of resulting trusts of the 
class now under -discussion occurs in the case of a charity. 
It has already been stated that one of the requisites to the 
creation-of a valid trust is certainty in the object to be ben- 
efited. If the object of an ordinary trust be not defined with" 
suflBcient precision, the gift will fail, and there will, of course, 
be a resulting trust. But in trusts for charitable uses the 
rule is otherwise. _ Uncertainty in the object does not nec- 
essarily result in a failure of the gift. Indeed, uncertainty 
in the object has been said to be a characteristic of a true 
charitable use.' 

Therefore, where there is a gift for charitable purposes 
generally, although no particular purpose is declared, or, if 
declared, does not exhaust the entire interest, there will be 
nu resulting trust, but the general charitable purpose will 
be carried out by the Court of Chancery.* 

The principle upon which a Court of Chancery acts in thus 
carrying out a general charitable intent is what is known in 
England as the cy pres doctrine — ^in other words, a doctrine 
by which the charitable disposition will be effected as nearly 
as may be. This principle has not been as much favored in 

1 Ackroyd v. Smithson, 1 Lead. Cas. table purpose only, and that par- 

Eq. 872 (4th Eng. ed.). ticular purpose has determmed, there 

» Hill on Trustees, 143; post, will be a resulting trust for the heirs. 

Part II., Chap. V. Hopkins ti. Grimshaw; 165 U. S. 342- 

> Infra, Part I., Chap. V. 353; St. Paul's Church v. Att -Gen 

* Hill on Trustees, 128. But where 164 Mass. 188. 
the trust is for a particular chari-. 



CH. ill.] IMPLIED TRUSTS. 167 

the United States as in England, and the exception to the 
general rule as to resulting trusts is therefore not, perhaps, 
so broad as in England. The subject will be found noticed 
iinder the head of Trusts for Charitable Uses.* At present 
it is sufficient to observe that this exception does exist. 

90. Conveyances without consideration. 

The last of the classes into which resulting trusts have been 
divided is where there is a voluntaly conveyance without 
any consideration, and it appears from circumstances that 
the grantee was not intended to take beneficially.* 

According to the ancient doctrine, where a feofi'ment was 
made without any consideration, the use resulted to the 
feoffor; and it was formerly thought that the same rule 
would apply to voluntary declarations of trust.' But the 
true rule now seems to be that where the instrument is 
perfectly executed and intended to operate at once, no re- 
sulting trust for the grantor will arise from the mere fact 
that the transaction is a voluntary one, unless there are 
other circumstances which tend to show that the grantee 
was not intended to take beneficially.* But very slight 
evidence will suffice to warrant the impUcation of a trust 
in favor of the grantor.^ 

91. Constructive Trusts. 

The second general division of implied trusts is that which 
embraces those known as Constructive Trusts. Construc- 
tive trusts are those which arise purely by construction of 
equity, and are entirely independent of any actual or pre- 
sumed intention of the parties. Nor have constructive 
trusts, as they are here considered, any element of fraud in 

1 Infra, Part I., Chap. V. . 126; Bank of United States v. Hous- 

2 Clark V. Patterson, 158 Mass. 388. man, 6 Paige Ch. 626; Titcomb v. 
» Hill on Trustees, 196. Morrill, 10 Allen, 15; Salisbury v. 
* Souverbye v. Arden, 1 Johns. Ch. Clarke, 61 Vt. 453; Kingsbury v. 

240; Rathbun v. Rathbun, 6 Barb. Christy (Ariz.), 192 P. 1114; Gray 

98; Philbrook v. Delano, 29 Me. 410; v. Beard, 66 Or. 59. See, however, 

Jackson v. Cleveland, 15 Mich. 103; Hogan 'v. Strayhom, 65 N. C. 279. 
Baldwin v. Campfield, 4 Halst. Ch. > Rogers v. N. Y. and Tex. Land 

891; Hogan v. Jaques, 19 N. J. Eq. Co., 134 N. Y. 197-214. 



168 IMPLIED TRtrSTS. [PART I. 

them. Equity, indeed, as we shall see, makes use of the 
machinery of a trust for the purpose of affording redress in 
cases of fraud; as^ when a parjty has acquired the legal title 
to property by unfair means, he will be deemed to hold it in 
trust for the injured party, who may call for a conveyance 
thereof.^ The party guilty of the fraud is said, in such cases, 
to be a trustee ex malefido." But, in such cases, the inter- 
ference of courts of equity is called into play by fraud as a 
distinct head of jurisdiction; and the complainant's right to 
relief is based upon that ground, the defendant being treated 
as a trustee merely for the purpose of working out the equity 
of the complainant.^ Cases of this description, therefore, will 
be considered under the head of Fraud. At present we have 
to do with those trusts which are, ia the truest and most 
technical sense, constructive — those, namely, which arise- 
by pure irnplication of equity, and without regard to the 
intention of parties, or (•necessarily) the frustration of 
fraud. ' 

92. Trustee cannot acquire rights antagonistic to cestui 
que trust. 
One of the most ordinary trusts of this kind is that which 
grows out of the rule of law which forbids a trustee, or any 
other person who occupies a fiduciary or quasi-fiduciary 
position, from gaining any personal advantage touching the 
thing or subject as to \7hich such fiduciary position exists.* 
To use the language of a learned author, "wherever one per- 
son is placed in such relation to another, by the act or con- 
sent of that other, or the act of a third person, or of the law, 
that he becomes interested for him, or interested with hinl 
in any subject of property or business, he is prohibited from' 
acquiring rights in that subject antagonistic to the person 

'Edwards v. Culberson, 111 N. U. S. 691; Hoge v. Hoge, 1 Watts, 

Car. 342. And see the language of 163; Church v. Ruland, 64 Pa. 443; 

the court in Cole v. Fickett, 95 Me. Hatcher v. Hatcher, 264 Pa. 105- 

265, and in Lockhart v. Leeds, 195 Jones v. Jones, 140 Cal.. 587. 

U. S. 436; Field v. Camp, 201 Fed. ' Kroll v. Coach, 45 Or. 473. 

682. •» Hill on Trustees, 159. 

*See Jones v. Van Doren, 130 



CH. III.] IMPLIED TRUSTS. 169 

with . whose interest he has become associated." The 
instance usually given of this rlile is the renewal of a lease 
by a trustee in his own name and with his own funds, which 
renewal will, by the equitable dodtrine now under consider- 
ation, enure to the benefit of the cestui que trust; and the 
leading authority upon the subject is the casei of Keech v. 
Sandford, .otherwise known as the Rumford Market Case.^ 
In that case the trustee applied, in the first instance, for 
the renewal for the benefit of the beneficiary, who was an 
infant; but the renewal was refused on the ground that the 
subject-matter of the lease being the profits of a market, 
there could be no distress, and the lessee's remedy must be 
on the covenant alone,, by which the infant could not be 
bound. The trustee then renewed for himself; and it was 
held, on bill filed, that he must still be regarded as a trustee 
of the lease for the benefit of the infant. The general doc- 
trine of this case is well established in the United States,^ 
and was thus expressed in a recent case: "There is a reason- 
able expectancy attending a lease of land that the tenant 
holding possession under it will be able to renew the- lease 
at its expiration, which expectancy is under some circum- 
stances recognized as a valuable property right, though the 
tenant "may have no way of enforcing renewal.' Equity will 

' 1 Lead: Cas. in! Eq. 44; Sel. Gas. 19Q P. 884; Van Wagenen v. Car- 

in Ch. 61. See, also, Mill v. Hill, penter, 27 Colo. 444; Millard o. 

3 H. L. CasTSSiS. , Green, 94 Conn. 597; Fricker t). 

" American note to Keech v. Sand- Co., 124 Ga. 165; Noble v. Noble, 

ford, 1 Lead. Gas. in Eq.:62 (4th 255 111., 629; Glingman. w. Hill, 104 

Am. ed!); Parkist v. Alexander, 1 Kan. 145; Hollowell v. Saterfield, 

Johns. Ch. 394; Evertson ». Tappen,, 185 Ky. 397; Petrie v. Badenooh, 

5 Johns. Ch. 514; Wilson v. Troup, 102 Mich. 45; Rdlikatis "n. Lovett, ' 

2 Gowen, 195; Butler v.. Hicks, 11 213 Massj 545; Nebraska Co. v.~ 
Sm. & Marsh.' 78; Mathews v. Koenig, 93 Neb. 68; Ashuelot R. 1^. 
Dragaud, 3 Dess. 25; Irwin v. Harris, Co. v. Elliot, 57 N. H. 397; Gubberly 

6 Ired. Bq. 221; Clark v. Cantwell, v.. Gubberly, 33 N. J. Eq. 82; Klein 

3 Head, 202; Green v. Bogue, 158 v. Waltman, 188 N. Y. S. 33;l; 
TJ. S. 478; Securities Go. «. Reservoir Amtson v. Bank, 39 N.D. .409; 
Co.', 259 Fed. 423; Colser v. Hughes,' Wells v. Shriver, 81 Okla, 408; 
205 Ala. 344; Zeekendorf v. Steinfeld, Jones's Estate, 179 Pa. 36. 

12 Ariz. 245; Lezinsky v. Go. (Gal.), 



170 IMPLIED TRUSTS. [PABT I. 

SO regard and treat it as_ against those occupying fiduciary 
relations to the tenant in respect of the leased property 
where they seek to supplant the tenant in the renewal of the 
lease, and the doctrine applies where a corporation's man- 
aging offi^cers offend against it."/ 

It may be thought that the above example might fall more 
properly under the head of a resulting trust of the second 
class," on the one hand, or under the head of constructive 
trusts by presumptive fraud on the other. . But the instance 
of a trust just stated differs from a resulting trust of the 
second class, inasmuch as the renewal of the lease was not 
made with trust funds, but with the proper money of the 
trustee; and it differs from a trust by fraud (growing out "of 
the relation of parties) in this that no fraudulent intent is 
even presumed to exist, but the renewal is forbidden simply" 
on the ground of public policy alone.' 

93. Extent of this rule. ' 

The rule under discussion applies not only to persons 
standing in a direct fiduciary relation toward others — such 
as trustees, executors, attorneys, and agents, but also to 
those, who occupy any position out of which a similar duty, 
ought in equity and good morals to arise.* Thus it will be 
enforced against partners,^ tenants in common,* tenants for 

' Lagarde v. Anniston Lime Go., scope of the firm's business. Latta 

126 Ala. 501; De Bardeleben v. Bes- «. Kilboum^ 150 U. S. 524; Hurst o. 

semer Land Co., 140 Ala. 621. Brennen, 239 Pa. 216, 231; Manship 

^ Supra, §86. See Cooper v. B.Newton, 94 S.'C. 260. 

Phibbs, L. R. 2 H. L. 149. « Van Home ». Fonda, 5 Johns. 

» Rich «. Black, 173 Pa. 92. Where Ch. 409; Bissell v. Foss,.114 U. 8. 

no actual fraud exists, the remedy is 252; Turner v. Sawyer, 150 U. S. 578; 

in equity alone. Yeackel v. Litch- Pillow ». Southwest Imp. Co., 92 Va. 

field, 13 Allen, 417. 144; Franklin Minmg Co. v. O'Brien, 

* Sun Dance Mining Co. v. Frost, 22 Col. 129; Keller ». Auble, 58 Pa. 

^ -^^-j^^^: ^ , „ , J «o„ 410; Tanney v. Tanney, 159 Pa. 277; 

' Anderson .. Lemon, 4 Seld. 236; ^^^^^^ ^ ^^^ ^ ^ y^ ^gg g^^ 

Cushmg V. Danforthj 76 Me. 114 _- , V-v m_ ii j noAai ■, 

Roby V. Colehour, 135 111. 300; Gunn ^\« Kennedy v. De Trafford, [1896] 1 

V. Black's Adm'trx, 19 U. S. App. Ch. 762, contra, where Van Horne v. 

477-485; Goodrich v. Wilson, 106 Fonda is criticised. See, also, Ste- 

Kan. 452. But the rule does not vens v. Reynolds, 143 Ind, 467; 

apply to transactions outside of the Hale v. CuUen, 71 Pa. Sup. 543. 



CH. III.] ' IMPLIED TBtrSTS. 171 

life,' tenants for years, ^ mortgagees,' a husband,* a wife,' 
attomeys-at-law,® and vendees under articles,' in favor of 
co-partners, co-tenants, tenants in remainder, landlords, 
mortgagors, a wife, a husband, clients, and vendors, re- 
spectively. It has been applied as against the receiver of a 
corporation,* and his confidential clerk; ^ and it has been 
enforced against directors of corporations in favor of stock- 
holders.*" And these instances must be considered only as 
illustrations of the principle, and not as an exhaustive cat- 
alogue of the parties to whom it will be confined. A pur- 
chaser from a trustee, executor, etc., will also be held to the 
same responsibility if he is either a purchaser without value 
or a, purchaser with notice of the trust. To be protected he 
must be a bona fide purchaser, without notice and for a 
valuable consideration." 

On the other hand, a vendor of real estate under articles, 
or a mortgagor, is held to a corresponding duty towards the 
vendee or mortgagee. Thus, it has been held that if a lessee 
mortgages the leasehold, and afterwards obtains a renewal, 
the renewal shall enure for the benefit of the mortgagee." 
Whether a^person who, if he renew at all, is bound to renew 
for the benefit of another, can purchase the reversion for 
himself, seems to be a doubtful question. *' 

•Dickinson v. Codwise, I'Sandf. 22 Ida. ,645; Rolikatis v. Lovett,.213 

Ch. 227rMoore v. Simonson, 27 Or- Mass. 545; Dunne v. Cunningham, 

egon, 117. 234 Mass. 332. 

' Matthews's Appeal, 104 Pa. 444; ' Morgan v. Boone, 4 Monroe, 

Oppenheimer v. Levi, 96 Md. 296. 291; Stephens v. Black, 77 Pa. 138; 

'Hyndmana. Hyndman;"19 Vt. 9; Petroski v. Minzgohr, 144 Mich. 

Benham v. Howe, 2 Cal. 387; McHan 356. 

V. Ordway, 76 Ala. 347. See Wood- ' Shadewald v. White, 74 Minn, 

lee V. Burch, 43 Mo. 231; Fellows v. 208; Cook v. Martin, 75 Ark. 40. 

Loomis,"170 Pa. 415; Chrisman v. "Gilbert v. Hewetson, 79 Minn. 

Hough; 146 Mo. 102; Porter o. 326. 

Corbin, 124 Mich. 201. ' " Fishel v. Goddard, 30 Colo. 152. 

« Swisshehn's Appeal, 56 Pa. 475; " HiU on Trustees, 162, 163; 

Woodard v. Woodard, 216 Mass. 1. Bridgman ». Green, 2 Yes. Sr. 627; 

» Lauricelia v. Lauricella, 161 CaJ. De Everett v. Henry, 67 Tex. 402; 

61. , Vance v. Kirk, 29 W. Va. 344; Jack- 

« Moore v. Brecken, 27 111. 23; Gal- son o. Thomgpn, 222 Pa. 232. 

braith v. Elder, 8 Watts, 81; Taylor v. " Smith v. Chichester, 1 Con. & L. 

Barker, 30S. C. 238; Olson v. Lamb, 486. 

56 Neb. 104; Ainsworth v. Harding, " Randall v. Russell, 3 Meriv. 190. 



172 IMPLIED TRUSTS. [PART I. 

The renewal of leaseholds is only an example of the general 
principle stated above, viz., that, no fiduciary can gain any 
personal advantage touching the subject of the trust. ^ The 
same doctrine is applied to prevent the purchase by persons 
in such positions of any claims, encumbrances, or out- 
standing titles. If, therefore, a tenant in common were to 
purchase an outstanding, adverse title, ihe acquisition would 
enure to the benefit of his co-tenants.^ In other words j he 
will -be treated as a constructive trustee of the newly-acquired 
title for the benefit of the other owners. And an agent em- 
ployed to purchase, who Jiakes a conveyance in his own name, 
will be considered as holding the property in trust for his 
principal.' i ^ 

But a vendee under articles who buys at sheriff's sale to 
save his title, is ndt a trustee for the vendor-^the only right 
of the latter is to recover on the agreement.* It must be 
recollected, however, that a vendee in possession under ar- 
ticles occupies^ towards the vendor a position analogous to 
that which a tenant holds to a landlord. He cannot deny his 
vendor's title; and, consequently, cannot set- up a tax title 
as a defence to a bill for specific performance.* 

94. Trustee cannot purchase at Bis own sale. 

Akin to 'the doctrine which has just been noticed is that 
which forbids trustees or executors or mortgagees with a 
power of sale from purchasing at their own sales.^ It has 

Though see Britton v. Lewis, 8 Rich. * See Thomson v. Adams, 55 Pa. 
Eq. 271; Eldridge v. Smith, 34 Vt. ' 484; Powell v. Lautzy, 173 Pa. 549- 

484. 550. 

• Hill on Trustees, 539 (849, 4th » Cuiran v. Banks, 123 Mich. 

Am. ed.). ' 594. 

^ Lloyd V. L3mch, 28 Pa. 419; 'Downes v. Grazebrook, 3 Mer. 

Dickey's Appeal, 73 Pa. 247; Sleight 200; Farrar v. Farrars, Limited, 40 

V. Roe, 125 Mich'. 585; Van Wagenen Ch. D. 409; Standback v. Thornton, 

». Carpenter, 27 Colo. 444. -But see 106 Ga. 81; French ». Woodruff, 

Kennedy I). De Trafford, [1896] 1 Ch. 25 Colo. 340; Brewer v. Harrison,' 

762. 27 Colo. 349; Smith vl Miller, 98 

i' Parkist fi. Alexander, IJohns. Ch. Va. 535; Marquam v. Ross, 47 

394; Wellford v. Chancellor, 5 Gratt. Or. 374; Irwin v. Monongahela Coke 

39; Baker v. Whiting, 3 Sumn. 476. Co., 238 Pa. 558; Blake v. Blake, 260 



CH. III.l IMPLIED TRUSTS. 173 

been held in many cases tljat if trust property is sold by the 
trustee, even at pubHc sale, he cannot purchase. If he does 

- so he will still be considered, at the option of the cestui que 
trust, a trustee by equitable construction.^ 

This rule does not proceed on the ground of. fraud, but 
because of public policy.^ It is the same policy as that 
which forbids a sheriff, for instance, from purchasing at a 
sale under an execution.^ No fraud may exist in point of 
fact; no fraud is presumed in law; but public propriety would 

/be outraged if such acts were permitted, and hence their 
prohibition. When they dOyOC<3ur, the wrong inflicted is 
redressed through the medium of a constructive trust.*.. 

This rule applies not only to those cases in which the 
trustee or agent. for sale buys directly from the beneficiary 
(in which case indeed, an element of fraud through undue 
influence is introduced by which the transaction is vitiarted), 
but also to purchasers at public auction, where all the world 
has a chance to buy, and it makes no difference whether the 
purchase has been advantageous or not; in either event the 
cestui que trust or principal, as the case may be, has the right 
to have it rescinded.* The purchase, however, may be af- 

111. 74; Whitelock v. Dorsey, 121 Md. Eq. 544; Blauvelt v. Ackerman, -20 

497; Davidson v. Real Estate Co., N. J. Eq.l41; MUes v. Wheeler, 43 

249 Mo. 474; Naylor v. Thomas, 111. 123; Naylor v. Thomas, 190 Ky. 

190 Ky. 588; Trust Co. v. Nelson, 588; Kruse v. Steffens, 47 111. 112 

i04 ^ebr. 499; Macfadden v. Jenk- Grumley v. Webb, 44 Md. 444 

ins, 40 N. D. 415. Roberts v. lloberts, 65 N. C. -27 

> See notes to Fox v. Mackreth, 1 Carter v. Thompson, 41 Ala. 375 

Lead. Cas. Eq. 115, and Hill <« Trus- Harris w. Parker, 41 Ala. 604; Scott 

tees. 248 (4th Am. ed.), and notes. v, Umbarger,. 41 Cal. 419; Reed v. 

^See- Yeaokel v. Litchfield, 13 Aubrey, 91 Ga. 435 (a case of at- 

Allen, 419; Goodell v. Goodell, 173 tempted sale, to the wife of the trus- 

Mass. 140; Tanner's Estate, 218 P^. tee); Taylor v, Calvert, 138 Ind; 67. 

361. ,See, however, Birdwell v. Cain, 1 

' See Lazarus ». Bryson, 3 Binney, Cold. 301; Schmeck v. Muhlpnberg 

58; and Hall w. Moore, 70 Miss. 75. Twp., 60 Pa. Sup. 191. 

* Hill on Trustees, 159 (248, 4th _' Campbell v. Walker, 5 Ves; 680; 

Am. ed., and note's); Michoud v. 13 Ves. 601; Davoue v. Fanning, 2 

Girod, 4 How. 504; Davoue v. Fan- Johns. Ch..253; Boerum v. Schenck, 

ning, 2 Johids. Ch. 252; Leisenring ti. 41 N. Y. 182; Washington, A. & G. 

Black, 5 Wafcts, 303; Rich w. Black, R. R. Co,, v. Alexandria & W. R.'R. 

173 Pa. 99; Staats V. Bergen, 17 N. J. Co., 19 Gratt. 592; Campbell v. 



174 IMPLIED TRUSTS. [pABT I. 

firmed at the option of the cestui que trust; 'and this affirm- 
ance may be implied by acquiescence after knowledge,'' and 
the doctrine under consideration will not be applied where 
the acquisition of trust- property by the trustee is in pur- 
suance of the very terms of the trust. ^ Moreover, the doc- 
trine is not without limits. It is not to be extended so as to 
prevent one who stands in a fiduciary relation from taking 
such steps as are necessary, in good faith, to protect his own 
interests. When, therefore, the pledgee of a mortgage was 
requested by the pledgor (the mortgagee) to proceed to 
foreclosure, and did so, and notified the pledgor that he (the 
pledgee) would bid only to an amount sufficient to cover 
the debt due him, it was held that the title acquired by the 
pledgee at such sale was free from any trust in favor of the 
pledgor.^ And where property is sold at a trustee's sale and 
bought by a stranger, the trustee may subsequently purchase 
from the stranger, provided the purchase is not made by 
virtue of some arrangement entered into at or prior to the 
trustee's sale and there is no element of bad faith;^ But 
such a transaction should be subjected to close scrutiny. 

It is a disputed point whether the rule applies to sales 
made adversely to the trust. Thus, it has been ruled that if 
a trust estate is sold under an adverse judgment, it is entirely 
competent for the trustee to bid.* The weight of authority, 

McLain, 51 Pa. 200; French v. Pitts- " Plucker v. Teller, 174 Pa. 529. 

biirg Vehicle Co., 184 Pa. 163; Ives For an analogoiis case, see Harrison 

V. Ashley, 97 Mass. 198; Dormitzer e. Mulvane, 62 Kan. 454. See, also, 

V. German Savings & Loan Soc, 23 Cottineham v. Moore, 128 Ala. 209, 

Wash. 132, 222. Even if the trustee and Corbin v. Baker, 167 N. Y. 

buys, not for himself, but for a third 128; "Shreve v. McGowin, 143 Ala. 

party. North Baltimore Build. As- 665, 

soc'n V. Caldwell, 25 Md. 42a « Voorhees v. Bailey, 59 N. J. Eq. 

' Ives V. Ashley {supra) ; Yeackel 292. 

tf. Litchfield, 13 Allen, 419; Perry on « Fisk v. Sarber, 6 W. & S. 18; 

Trusts, § 198; Hill on Trustees, 249 Bruner v. Finley, 187 Pa. 389; Dyer 

(4th Am. ed.). «. Shurtlifi, 112 Mass. 165; Hall v. 

* Hammond v. Hopkins, 143 U. S. Bliss, 118 Mass. 554; Twin-Lick Oil 

224; Hoyt v. Latham,' 143 U. S. 553; Co. v. Marbury, 91 U. S. 590-595; 

Quirk V. Liebert, 12 App. (D. C.) 394. Allen v. Gillette, 127 U. S. 589; Stein- 

' Patterson v. Lennig, 118 Pa. 571, beck v. Mining Co., 152 Fed. 333; 



CH. III.] IMPLIED TRUSTS. 175 

however, is perhaps the other way; ' and this tendency is 
well illustrated by a case in Michigan, where it was held 
that an agent for the sale of real estate not only had no right 
to bid it in for himself at a foreclosure sale, but that he could 
not free himself from this disability by notifying his principal, 
prior to the sale, that it was his intention to bid.'' 

Trustees are very frequently allowed by order of court to 
bid at their own sales, but in so doing their conduct is , 
watched with great jealousy,' and if they use trust funds in 
the purchase, the profits of a resale will b6 held to belong 
to the cestui que trusts 

95. Other Constructive Trusts. 

A constructive trust will also arise if a person obtains from 
a trustee the trust property without paying value for it, al- 
though without notice of the trust. In such a case he will 
be held to be a trustee by construction.^ 

A constructive trust may also arise under a contract.* 
Where a contract has been entered into for the sale of an 
estate, equity, as it looks upon things agreed to be done 
as actually performed,^ considers the vendor as a trustee 
of the legal- title for the purchaser, and the purchaser as a 
trustee of'the purchase-money for the vendor.* The method 
of enforcing these trusts is by a bill to compel the conveyance 
of the legal title, or, in other word^, a bill for specific perform- 

Downs V. Rickardsj 4 Del. Ch. 416; « Baker's Appeal, 120 Pa. 3.3. 

Hill on Trustees, 160 (250, 4th Am. ' Hill on Trustees, 172. 

ed.); MacDotigall v. Bank, 265 Pa. 'Money or property contributed 

173; Starkweather v. Jenner, 216 by his followers to the founder of a 

U. S. 528. church, who is professedly engaged 

' Marshall v. Carson, 38 N. J. Eq. in extending and building up such 

250. See Hill on Trustees, u&isMpro; church, cannot be claimed by him 

Perry on Trusts, § 205. as his individual property, but is 

* Kimball v. Ranney, 122 Mich, impressed with 9, trust which binds 

160. him as trustee to use it for such pur- 

» Cadwalader's Appeal, 64 Pa. 293; pose, and such trust may be enforced 

Dundas' Appeal, 64 Pa. 325; Ten- in equity. Holmes v. Dbwie, 148 

nant ». Trenchard, L. R. 4 CL. App. Fed. 634. 

637-547; Clay v. Thomas, 178' Ky. ■'Ante, §44. 

199. « Hill on Trustees, 171. . 



176 IMPLIED TKTJSTS. [PART I. 

ance; and the subject will be considered when that equitable 
remedy is, treated of.^ 

Constructive trusts, like resulting trusts, do ' not fall 
within the Statute of Frauds,. Such has been the uniform 
doctrine of the English courts, and the same, rule has been 
adopted in this country.^ Any other interpretation, in- 
deed, wolild be iii contravention rather than in fulfilment 
of the provisions of the statute; for it has been well said that 
it is not easy to see how such a trust could be established 
except by parol evidence, and that if such evidence were 
not competent, a "statute made to prevent frauds would be- 
come a most potent instrument whereby to give them Suc- 
cess." 3 ' . 

1 Infra, Part III., Chap. I. , McCoy, 30 Okla. 379; Orr w.- Perky 

2 Hm on Trustees, 59; Plumer v. Co., 65 Wash. 281; Bryan v. McCas- 
Reed, 38 Pa. 46; Beegle v. Wentz, 55 - kill, 284 Mo. 683. 

Pa. 369; Seechrist's Appeal, 66 Pa. 'Church v. Ruland, 64 Pa. 442 

237; Church v. Ruland, 64 Pa. 442; Simond's Estate, 201 Pa. 417. See, 

Hogew. Hoge, /I Watts, 163; Roby V. also, Long v. Perdue, 83 Pa. 217 

Colehour, 135 111. 300; Giffen v. Tayr Haigh v. Kaye, L. Jl. 7 Ch. App. 469 

lor, 139lnd. 573; Apgar v. Connell, Davis v. Whitehead, - [1894] 2 Ch 

79 Misc. (N. Y.) 540; Brogden v. 133; Story's Equity Jurisp., § 1198 

Gibson, 165 N. C. 19; Lauricella v. Boone v. Lee,'l75 N. C. 383; Koehler 

LauricfiUa, 161 ,Cal. 61; McCoy v. ,v. Koehler (Ind") 121 N. E. 450. ■ 



CHAPtER IV 



TRUSTS FOR MARRIED WOMEN 



96. Rights of husband at coinmon 

law in wife's property. 

97. Statutory changes. 

98. Creation of trusts for sole and 

separate use. 

99. Trustee not necessary. 

100. No particular words necessary. 

101. Power of married women over 

separate estate. 

102. Liability of separate estate to 

her engagements. ' 

103. Rules in the United States upon 

this subject. 

104. Restraints on anticipation. 

105. For whose benefit separate es- 

'tates may be created. 



106. Rules in the United States upon 

this subject. 

107. General concIusionB,* Lewin's 

propositions. 

108. Pin-money trusts. 

109. Wife's equity to a settlement. 

1 10. How enforced. < 

111. How waived. 

112. To what property it attaches. 

113. Against whom, and in whose 

favor. 

114. Gifts from husband to wife; 

contracts. 

115. Contracts for separation. 



96. Rights of husband at common law in wife's property. 

It is well known that at common law a husband acquired 
a life estate as tenant by the curtesy of England in his wife's 
inheritable estates in realty, provided there was issue of the 
marriage born alive,' that"he had power to. alien her chattels 
real, land that he also became entitled to her personal prop- 
erty in possession, and to her choses in action, provided he 
reduced them into' possession during coverture, or by ad- 
ministration, if Jhe survived her. 

This was the case not only as to the property of a feme 
covert of which she held the legal title, but also as to that in 
which she had only an equitable interest. If, for example, 
a fund were held by a trustee for the benefit of a woman, and 
she were to marry, her husband would have had the right 



iln many states of the Union 

12 



birth of issue is no longer a requisite 
to tenancy by the curtesy. 

177 



178 TRUSTS FOR MARRIED WOMEN. [PART I. 

to demand payment to himself, and his receipt would have 
been a suflScient discharge.^ 

This right of the husband was, however, subject to this 
qualification, viz., that if, in order to reach the equitable 
property of the wife, he were obliged to come into the Court 
of Chancery, equity would compel him, at her request, to 
make a suitable provision for herself and her children.* This 
right of the wife was what is known as her equity to a settle- 
ment. It grew out of the general maxim that he who seeks 
the aid of a court of equity must do equity; and was, there- 
fore, at first supposed to be enforceable against the_husband 
only in those instances wherein he was corapelled to resort 
to the assistance of a chancellor for the purpose of reaching 
his wife's property. It was, however, decided in Elibank 
V. Montolieu that the benefit of this rule could be claimed by 
the wife as plaintiff, and this is now settled law.^ 

97. Statutory changes. 

The English common-law rule existed originally in most 
of the United States. It has, however, in many, if not all of 
them, been altered by statute, and the property of married 
women has been freed from the grasp of the. husband's 
authority and from liability for his, debts and engage- 
ments; and in England, also, the common-law rights of the 
husband in his wife's property have been modified in a like 
manner, by the Married Women's Property Acts of 1882 and 
1893", by which the property of a married woman is abso- 
lutely secured to her, and the intervention of a trustee is 
unnecessary.^ Moreover, both in England and in the United 
States, the power of a married woman, in respect of her 
property, has undergone an equally radical change; for a 
feme covert in England may now, without the intervtention 
of a trustee, dispose by will or otherwise, of .any property, 
real or personal, as if she was & feme sole; while in many 

' Hill on Trustees, 407; Perry on ' Elibank v. Montolieu, 5 Ves. 737, 

Trusts, § 626. « 45 and 46 Vict., c. 75; 56 and 57 

2 Elibank v. Montolieu, 1 Lead. Vict., c. 63. See Lewin on Trusta, 

Cas. Eq. 623, and post, § 109. 964 (12tli Eng. ed.). 



CH. IV.] , TRUSTS FOR MARRIED WOMEN. 179 

states of the Union statutory provisions of an equally liberal 
character exist. ^ 

98. Creation of trusts for sole and separate use. 

Reasons similar to those which have led to these legisla- 
tive enactnients had long ago in England induced the Court 
of Chancery 4o interpose its extraordinary jurisdiction for 
the protection of married women, and this object was effected 
by the creation of what is now so well known as the equitable 
separate estate of femes covert — which not only owes its 
existence to.equity, but which is governed,^ in many particu- 
lars', by rules differing from those which are incidental to 
ordinary legal and equitable estates, and which ^ttie courts 
have found necessary to lay down in order to attain the 
desired end. 

This equitable separate estate may be defined to be an 
estate created by, and originally recognized only in, courts 
of equity for the purpose of securing the beneficial enjojonent 
of property- to a woman during coverture — this purpose 
being ^fifected through the medium of a trust whereby the 
ordinary marital rights of the husband over his wife's prop- 
erty are excluded, so far as the same are in contravention 
of the feme's enjoyment of her estate.^ 

It will be seen, hereafter, that while the objects which the 
courts had in view, in creating the equitable separate estate, 
were to exclude the husband's control, to free the property 
from liability for'his debts, and to secure to the w^fe its bene- 
ficial ownership, yet the decisions upon this subject have not 
beei^ uniformly successful in accomplishing the desired re- 
sults. 

It may be observed here that while the separate use trust 
is of an exceptional character,' yet it is based upon very 

' Davies v. Jenkins, 6 Ch. D. 728; ' When the settlement to the sepa- 

Morrell v. Cowan, Ch. D. 166. ~ See rate use of a married woman is made 

notes to Hulme v. Tenant, 1 Lead, in pursuance of an antenuptial con- 

Cas. Eq. 481 (4th Eng. ed.). tract, no policy of the law is violated. 

' When the legal title is vested in It is simply the fulfiUment of a con- 

the/eme there is no separate estate, tract. Lewin on Trusts^ 968 (12t)i 

Todd's Appeal, 24 Pa. 429. " Eng. ed,). 



180 TRUSTS FOR MARRIED WOMEN. [PART I. 

broad principles which occasionally manifest themselves in 
other equitable doctrines as much at variance with the ordi- 
nary common-law rules as the one now under consideration.' 
Thus, it has been •pointed out by a learned judge that not 
uilfrequently a strife occurs between the will of the donor 
and the public policy which forbids a restraint upon aliena- 
tion, or which renders property in which a party has a bene- 
ficial interest subject to the grasp of his creditors. Yet it 
has Occurred in many instances that both of these branches 
of pubEc jfolicy have been, to a certain extent, infringed,' 
becjtuse efquity has thought it right to allow a donor to make 
a gift upon such terms, and subject to such restri&tions, as he 
might se6 fit.* ' 

99. Trustee not necessary. 

It has been stated ah;eady that the object oi securing to a 
wife the enjoyment of her estate was effected through the 
medium of a trust. Wherever there is an intention to create 
a trust, and that intention is manifested by apt words, the 
^Use will not be executed in the wife.^ It is not, however, nec- 
essary that a imsfee should be expressly nominated. It was, 
indeed, at one time doubted whether a trustee would not be 
necessary,^ but it is now settled that where there is a gift to a,- 
married womanj and no trustee is named, the husband will be 
considered the trustee; * especially if the gift be from hitn 
directly to the wife, for in this last case the gift could be 
supported in no other way.* But while a trustee is not nec- 

.' See -Wells.v. McCall, 64 Pa. 212 Marsh. 226; Treaton Barjking Co. v. 

(per/Agnew, J.); Dodson v. Ball, 60 Woodruff, 1 Green Ch. 210; Steel 

Pa. 492; Jourdan v. Dean, 175 Pa. v. Steel, 1 Ired. Eq. 462; Freem'an v. 

599. > . ; Freeman, 9 Mo.' 772; Hamilton v. 

^ See Ware v. Richardson, 3 Md. Bishop, 8 Yerg. 33; Fears v. Brooks, 

.553, and Ayer v. Ayer, 16 Pick 327; .12 Ga. 195; Whitten v. Jenkins, 34. 

where the subject is well dfecussed. Ga. 297; Miller w. Miller's Admtr., 

' By Lord Co"wper in Harvey v. 92 Va. 5l0; Brandau v. McCurley, 

Harvey, 1 P. Wms. 125. 124 Md. 243; Hill on Trustees^ 628 

* Bennet p. Davis, 2. P. Wms. 316; (4th Am-, ed.); Perry on Trusts, 

Parker v. Brooke, 9 Yes. 583; Jami- § 647.. 

son V. Brady, 6 S. & R. 466; Varner's » Steel v. Steel, 1 Ired. Eq. 452, 

Appeal, 80 Pa. 140; Barron v. Barroii, 455; McKennan v. Phillips, 6 Whart. 

24 Vt. 375; Long v. ;White, 5 J. i. 571; Boykin v. Ciples, 2 Hill Ch. 200; 



CH. IV.] TRUSTS FOR MARRIED WOMEN. 181 

essary, it is essential that there should be a trust; in other 
words, it is imperative that there should be a. separation of 
the estate into its legal and equitable elements, and that the 
latter only should vest in the wife. If the legal estate be- 
comes vested ia the /erne, it is impossible to exclude the rights 
of the husband,^ or to trammel the power of the wife.^ 

100. ITo particular words necessary. 

No particular. form of words is necessary to create & trust 
for. the benefit of a feme covert. 

According to the modern English authorities, the most apt 
word to create such a trust is "separate; "which has a fixed 
and technical meaning, and which will, of itself, exclude the 
maritail rights ;.'whereas the same fixed and technical mean- 
ing is not attributable to "sole. " ' And it may be stated^ in 
general, that the instrument must manifest a design to ex- 
clude the husband, or must contain expressions ii^consistent 
with his marital rights in respect of the property.* 

Any form of Expression, however, indicative of an inten- 
tion' to confer the beneficial enjoyment upon the wife, and 
to exclude the rights of the husband, will be enough,' It 

B^kins V. Giles, Rice's Eq. 316; & Sm. 38; Lewis ». Matthews, L. R. 

Long V. White, 5 J. J. Marsh. 226; 2 Eq. 177; Massy f.Rowen, L. R. 

Trenton Banking Co.' v. Woodruff, 1 4 H. Ji. 288; Wilson v. Trust Co., 

Green Ch. 118; Freeman ». Free- 225 Pa. 139. 

man, 9 Mo. 772; Hamilton «.■ Bishop, *Rudisell v. Watson-, 2 Dev. J!q. 

8 Yerg. 33; Heck t;. Clippenger, 5 Pa. 430; Asjicraft v. Little, 4 Ired. Eq. 
385; Shirley t;. Shirley, 9 Paige Ch.. 236, 238; Williams v. cWbome, 7 
364. Spe, however. Wade v. Fisher, Sm. & Marsh. 488; Carroll v.' Lee, 3 

9 Rich. Eq. 362, where the gift was Gill. & Jl 505; Roane v. Rives, 15 
not upheld. In Penna. Salt Co. v. Ark. 330; Nightingale.!;. Hidden, 7 
Neel,' 54 Pa. 17, such a conveyance R. I. 115; Evans v. Knorr, 4 Rawle, 
was sustained in a common-law ao- ^66; Evans v. Gillespie, 1 Swan. MS; 
tion. Bamum v. Le Master, 110 Cook v. Kennerly, 12 Ala. 42; Hale 
Tenn. 638. «>• Stone, 14 Ala. 803; Turtop v. Tur- 

1 Bush «. Allen, S Mod. 63; Harton ton, 6 Md. 375; Brandt «. Mickle, 

V. Harton, 7 Term R. 652; Williams 28 Md. 436; Tritt o. Colwell, 31 Pa. 

v. Waters, 14 Mees. & Wels. 166; 228. ' ■'- -' 

Ware v. Richardson, 3 Md. 532; "Stuart v. Kissam, 2 Barb. 494; 

Todd's Appaa^, 24 Pa. 429. West v. West, 3 Rand. 378; Lewis v. 

' Warden ». Lyons, 118 Pa. 398. Adams, 6 Leigh, 320; Perry v.. Boil- 

»See Gilbert v. Lewis, 1 DeG., J. eau, 10 S. & R. 208;>Ballard v. Tay- 



182 



TRUSTS FOR MARRIED WOMEN. 



[part I. 



would be almost impossible to give all the expressions which 
have been held to be sufficient; the following are instances: 
' ' for her sole and separate use ; " ^ " f or her own use and bene- 
fit independent of any other person;" " her husband "to 
have no control;" *'"for the use, maintenance, and sup- 
port; " * "solely for her own use; " ' "for her sole use, benefit, 
and behoof; " * "absolutely; " ^-"her receipt to be a sufficient 
discharge; " * "to be paid to her when she is divorced' from 
her husband or voluntarily withdraws from him; " ' f or the 
sole and only use and benefit of the wife.*" 

On the other hand, the following have been considered as 
insufficient to raise a trust: "to her use;" " "to her own 
use; " *^ "to her heirs and assignees, for her or their own sole 
use; " " "for her use and benefit; " " "but the said gift ex- 
tends to no other person. " " 

Whether a provision that the property "is not to be liable 



lor, 4 Dess.' S50; Davis t>. Cain, 1 
Ired. Eq. 305; Heathman v. Hall, 
3 Ired. Eq. 414; Hamilton v. Bishop, 
8 Yerg. 33; Beaufort v. Collier, 6 
Humph. 487; Somers v. Craig," 9 
Humph. 467; Nixon v. Rose, 12 Gratt. 
425; Williams v. Avery, 38 Ala. 115; 
Clark «. Maguire, 16 Mo. 302; Boal 
ti. Morgner, 46 Mo. 48; Duffield's 
Appeal, 168 Pa. -171. 

' Parker v. Brooke, 9 Ves. 583; 
Archer v. Rorke, 9 Ir. Eq. 478; Wil- 
son t). Trust Co., 225 Pa. 139. 

^ Margetts v. Barringer, 7 Sim. 482, 
See, also. Pepper v. Lee, 53 Ala. 33. 
~3 Edwards v. Jones, 14 Weekly Rep. 
815; see Craig v. Watt, 8 Watts, 498; 
Keating v. MoAdoo, 180 Pa. 6; Lewis 
V. Brice, 187 Pa. 362. 

<Good V. Harris, 37 N. C. 630. 
See, also, for the same or nearly iden- 
tical expression, Newman v. James, 
12 Ala. 29; Warren t>. Haley, 1 Sm. 
& Marsh. Ch. 647; Griffith v. Grif- 
fith, 5 B. Mon. 113. 

• Jamison v. Brady, 6 S. & R. 466; 
Snyder v. Snyder, 10 Pa. 423; Jarvis 
11. Prentice, 19 Conn. 273; Good- 
rum ti. Goodrum, '8 Ired. Eq. 313; 



Cuthbert t>. Wolfe, 19 Ala. 373; 
Stuart V. Kissam, 2 Barb. 494; Scott 
«. Bryan, 194 Pa. 46. 

• Williman v. Holmes, 4 Rich. Eq. 
479. 

' Shewell t>. Dwarris, Johns. 172; 
Brown v. Johnson, 17 Ala. 232.' 

»Lee V. Prieaux, 3 Bro. Ch^381; 
Stanton o. Hall,. 2 R. & M. 180; 
Charles v. Coker, 2 S. C. 122. 

9 Perry w. Boileau, 10 S. & R. 208. 

'» Cadematori v. Ganger, 160 Mo. 
352. 

" Jacobs V. Amyatt, 1 Mad. 376, n.; 
Torbert v. Twining, 1 Yeajlea, 432, 
Tennant v. Stqney, 1 Rich. Eq. 222. 

" Johnes v. Lockhart, 3 Bro. Ch. 
383, n. V 

" Lewis V. Mathews, L. R. 2 Eq. 
177; but see "Williman v. Holmes, 4" 
Rich. Eq. 475; Rudisell i;. Watson, 2 
Dev. Eq. 430; Houston v. Embry, 1 
Sneed, 4^0. See, also, Tyler u. Lake, 
4 Sim. 144. 

" Fears v. Brooke, 12 Ga. 198;Cle- 
venstine's Appeal, 15 Pa. 499. 

"Ashoraft v. Little, 39 N. C. 
236. 



CH. IV.] TRUSTS FOR MARRIED WOMEN. 183 

to her husband's debts, " will be enough to create a separate 
triist, cannot perhaps be declared with certainty, as the 
authorities are not uniform.^ 

The fact that the estate is given to the feme jomUy with 
others will not prevent it from being an estate to the sole 
and separate use.* 

It is obviously improper to lay down any authoritative 
rules by which all the decisions upon this subject can be 
reconciled. But the classification suggested in Nix v. Brad- 
ley * seems to be highly satisfactory. It ;was there said that 
the expressions whereby a separate estate could be created 
might be grouped into three classes: 1st. Where the tech- 
nical words "sole and separate use," or equivalent words, 
are used. 2d. Where the miarital rights are expressly ex- 
cluded. 3d. Where the wife is empowered to perform acts 
concerning the estate given to her inconsistent with the dis- 
abilities of coverture. 

It must be remembered, moreover, that the intent to 
create a separate estate must exists and that words, which 
might otherwise have been considered apt words to create a 
separate estate, will not have that effect, if it appears from the 
instrument that a separate use was not iniended to be created. 
Thus in Lippincott v. Mitchell ^ the words "sole and proper 
use, benefit, and behoof "of the wife were relied upon as creat- 
ing a separate estate. But these words occurred in the haben- 
dum of the deed, and were simply the ordinary conveyancing 
form of expression which occurs in that portion of the docu- 
ment. It was, therefore, held that no separate use was 
created. 

101. Power of married women over separate estate. 

It wafe said above, that the objects sought to be attained 
by the trusts now under consideration were very nearly de- 
feated by the construction which the English Coiirt of Chan- 

' Gillespie v. Burleson, 28 Ala. Mo. 444; Burnley v. Thomas, 63 Mo. 
S51r Lewis v. Elrod, 38 'Ala. .17; , 392. . 

Martin 'tf. Bell, 9 Rich. Eq. 42; » 6 Rich. Eq. 48. 
Young V. Young, 3 Jon. Eq. 216. * 94 U. S. 767. See, also, MacCon- 

* Metropolitan Bank^w. Taylor, 53 nell v. Wright, 150 Pa. 275. 



184 TEUSTS FOB MARRIED WOMEN. [PART I. 

eery placed upon the authority and powers of the/eme over 
property so Ihnited. This coi;struction was that a /ew^e 
covert was, as to her sole and separate estate, to be regarded 
as a, feme sole, and that therefore she had the same power of 
disposition over \ the estate, and was subject to the same 
Jiabilities in regard to it, as if she were unmarried. 

Her power of disposing of her estate was settled by many 
authorities. ^ 

"The first case upon the subject," said Lord Thurlow in 
Fettijjlace v., Gorges,^ "is a very old one in Tothill; that 
where a woman from her separate stock has saved a sijim of 
money, she may dispose of it. * * * I know there is a vast 
number of cases upon it; but I have always thought it settled 
that from the moment in which a woman takes personal 
property , to her sole and separate use, from the same moment 
she has the sole and separate right to dispose of it." . And 
this right may be exercised by a disposition inter vivos -f^^ or 
by will.^ This power of disposition was formerly supposed 
to apply only to personalty, and to a life interest in realty; 
but it is now held in England that the feme is entitled to 
dispose of the corpus of her real estate; * and that, too, by 
will or by deed not acknowledged according to. the formali- 
ties of the statute.^ In other words, a gift of a fee-simple 
estate or a gift of a capital sum of money to the separate use 
of a married woman gives her the same power of alienation 
over it as, if she were a single woman.* This was decided in 
the year 1865, in the leading case of Taylor v. Meads, just 
cited, and the rule upon the subject was there stated by the 
Chancellor (Lord Westbury) in the following language: 
"With respect to separate property, the/eme coverte is, by the 
form of trust, released and freed from the fetters and dis- 

UVes.Jr. 48. 'Taylor v. Meads, 4 DeG., J. 

' Wagstaff V. Smith, 9 Yes. 520. & Sm. 604; HaU v. Waterhouse, 5 

» Rich t). Cockell, 9 V?s. 369. - Giff. 64; Pride «h Bubb, L. R. 7 

' Taylor v. Meads, 34 L. J. Ch. 203; Ch. 64, and Homoeopathic-Mut. Life ' 

11 Jur. N. s. 166; 4 DeG., J. & Sm. Ins. Co. v. Marshall, 32 IJ. J. Eq. 

697. See, also. Hall v. Waterhouse, 5 103. 

Giff. 64; Pride v. Bubb, L. R. 7 Ch. « Per Sir George Jeasel, M. R., in 

64- Cooper v. Macdonald, 7 Ch. D. 293. 



CH. IV.] TRUSTS FOR MARRIED WOMEN. 1^5 

ability of coverture, and invested with the rights and powers 
of a person who is sui juris. To every estate and interest 
held by a person who is sui juris the common law attaches 
a right of alienation, and accordingly the right oiafeme covert 
to dispose of her separate estate was recognized and admitted 
from the beginning until Lord Thurlow devised the clause 
against anticipation. But it would be contrary to the whole 
principle of the' doctrine of separate use to require the con- 
sent or concurrence of the husband in the act or instrument 
by which the wife's separate estate is dealt with or 'disposed 
of. That would be to make her subject to his control or in- 
terference. The whole lies between the married woman and 
her trustees; and the true theory of her alienation is that any 
instrument, be it deed or writing, when signed by her, op-« 
erates as a direction to the trustees to convey or hold the 
estate according to the new trust ^which is created by such 
direction. This is suflS'cient to convey the feme coverte's equi- 
table interest and when the trust thus created is clothed by 
the trustees with the legal estate, the alienation is complete 
both at law and in 'equity." 

102. Liability of separate estate to her engagements. 

The same line of reasoning, which induced the English 
courts of equity to recognize the p^er of a married woman 
to alienate her separate estate, has also led to a recognition 
of the liability of this estate to the Engagements of the feme. 
The separate property of a married woman being a creatm-e 
of equity, it follows that, if she has the power to deal with it, 
she has the other power, incident to property in general, viz., 
the power of contracting debts to be paid out of it; and equity 
will lay hold of the separate estate as the only means by which 
those debffe can be satisfied.^ This hability was at first sup- 
posed to exist only when the feme hgid executed some obli- 
gation under seal; " but the courts have now reached the 

•Hulme V. Tenant, 1 Lead. Cas. «Hulme v. Tenant, I Bro. C. C. 
Eq. 679.(481, 4th Eng. ed.); Owens 16. 
V. Dickinson, ICr. & Ph. 48; Perkins 
«. Elliott, 23 N. J. Eq. 529. 



186 TBITBTS FOR MARRIED WOMEN. [PAHT I. 

conclusion that the same liabiUty exists in respect of a mere 
verbal engagement, and that when a married woman enters 
into an agreement, she allows the supposition to be made 
that she intends to perform the agreement out of her prop- 
erty, and that she creates a debt which may be recovered, 
not by reaching her, but by reaching her property.' When a 
man contracts debts,' both his person and his property are by 
law liable to the payment of them. A court of equity, having 
created a separate estate, has enabled a married woman to 
contract debts in respect of it.^ Her person cannot be made 
liable, either in law or in equity,' but in equity^ her property 
may. A court of equity gives execution, therefore, against 
the property, just as a court of law gives execution against 
the property of other debtors. These are the views ex- 
pressed by Lord. Justice Turner, in Johnson v. Gallagher, * 
and must now be taken as the settled law of England upon 
the subject.^ It must be here observed that the courts have 
not yet gone to the length of holding that a mere general 
engagement of a married woman will in all cases affect her 
separate estate.* On the contrary, it has been expressly de- 

> Picard v. Hine, L. R. 5 Ch. 274; Hine, L. R. 5 Ch. 274. See,' also, 

Johnson v. Gallagher, 3 DeG., F & London Bank of Australia,!). Lera- 

J., 494; London Bank of Australia v. priere, L. R. 4 Priv. C. App. 572; 

Lempriere, L. R. 4 Priv. Coun. App. Harvey's Estate (Godfrey v. Harben), 

5*72; Murray v. Barlee, 3 M. & K. 209; 13 Ch. Div. 216; Hodgson v. William- 

Matthewman's Case, L. R. 3 Eq. 781; son, 15 Ch. Div. 89; In re Lady Hast- 

Shattock V. Shattock, L, R. 2 Eq. ings, 35 Ch. Div. 101. A contract of 

182. a married woman, where it binds her 

' See Price v. Planters' Nat. Bank, separate estate, binds only that of 

92 Va. 468. which she was possessed at the time of 

' It had been decided in Corbett v. the contract. Pike v. Fitzgibbon, 17 

Poelnitz, 1 T. R. 5, that an action at Ch. D. 454. In Massachusetts, see 

common law would lie when the wife Rogers v. Ward, 8 Allen, 389. 
has a separate maintenance and lives ' "The principle, as I have always 

apart from her husband, and receives understood it," said SiKeorge Jessel, 

credit upon the possession of the es- M. R., in Wainford v. Heyl, L. R. 20 

tate, but this was subsequently over- Eq. 324, "is this: a married woman is 

ruled in Marshal^ v. Rutton, 8 T. R. liable — or rather her separate estate 

545. is Uable (for there is no personal liar 

* 3 De.G., F. & J. 509. bility as far as she is concerned) — to 

° See the opinions^ of the Lord make good all contracts which are 

Chancellor, Hatherly, and of Lord made by her with express reference 

Justice Sir G. M. Giffard, in Picard v, to the separate estate, or which from 



.CH. IV.] TKUSTS FOB MARRIED WOMEN. 187 

cided that the contr|act of a married woman can be made 
good only out of the separate estate which is hers at the time 
of the contract; and this conclusively shows that the engage- 
ment is not to beiireated, in all respects, as the undertaking 
of one sui juris. ^ The true view seems to be that such an 
engagement will be binding if it appears that it was made 
with reference to, and upon the faith and credit of, her sepa- 
rate estate; but that whether it was so or not is a question 
to be judged of by the court under all the circumstances of 
the case. The fact that the /erne is living separate from her 
husband, and is known not to be receiving maintenance from 
him, is considered evidence to show that the contract was 
made with reference to her separate estate.^ 

It was at one time supposed that the contract of a feme 
covert operated as an appointment of her separate estate; ' 
but this idea is now exploded,* as it is manifest that to hold 
such a doctrine would lead to the conclusion that the debts 
were to be paid in the order of their creation, whereas they 
all stand on an equal footing, and are paid pari passu.^ 

the nature of the contract itself must 454; King v. Lucas, 23 Gh. D. 712; 
be intended to be so referred; but she Ankeney v. Hannon, 147 Ut- S. 130; 
is not liable even for general con- 'Filler v. Tyler, 91 Va. 458. 
tracts which from their nature can- ' Picard v. Hine; Johiison ». Galla- 
not be so referred; a fortiori she is not gher, ut sup.; Johnk>n i>. Cummins, 16 
liable for general torts, but her hus- N. J. Eq. 97, and I^arrison v. Stewart, 
band is liable. Her separate estate 18 N. J. Eq. 451. See Dodge v. 
may be liable for a fraud relating to Knowles, 114 U. S. 430, and Chaffee 
the separate estate, that is, dealing v. Browne, 109 Cal 211. 
with the separate estate by way of » Clark v. Miller, 2 Atk. 379; Mur- 
fraudulent representation. Again, ray v. Barlee, 4 Sim. 82, by Sir L. 
the estate may be made liable for an , Shadwell, V. C. 
actual appropriation of funds sub- * Johnson v. Gallagher {supra); In 
ject to the same settlement and the re Roper, 39 Ch. D. 482. A debt 
same trusts which create the separate contracted by a married woman, pay- 
estate. • * * That, as I understand, able out of her separate estate, is 
is the decision in Clive v. Carew, 1 ban^ by the same lapse of time in • 
J. & iH. 199. But apart from such which an ordinary debt arising from 
cases as these, one cannot conceive a simple contract would be barrel by 
why she could be made liable for the Statute of Limitations, the Court 
general torts in reference to trusts of Chancery acting herein by anal- 
any more than for general torts at ogy. In re Lady Hastings, 35 Ch. 
law." D. 94. 
'Pike V, Fitzgibbon, 17 Ch. D. » Murray ». BarUe, 3 M. & K. 209, 



188 



TRUSTS FOR MARRIED WOMEN. 



[part I. 



103. Rules in the United States upon this subject. 

In the United States the decisions upon the power of a 
feme covert over her separate estate, and its liabiUty to her 
engagements, have not been uniform. The first departure 
from the English rule was in South Carolina, in the year 1811. 
In the case of Ewing v. Smith ^ the Court of Appeals (over- 
ruling the decision of Chancellor Desaussure) held that a 
feme covert had no powers over her separate estate except 
those which had been given to her by the trust instrumentj- 
and that the powers conferred must be strictly pursued. 
This decision, with the exception of_a doubt expressed in 
1826,'' has been steadfastly adhered to in subsequent cases.^ 
The same rule was established in Pennsylvania, in the lead- 
ing case of Lancaster «;. Dolan,^ and was upheld and enforced 
in subsequent decisions.^ It was, indeed, held in that state, 
in Haines v. EUis,^ that the law had been altered by the 
Married Women's Act of 1848; but this decision was subse- 
quently overruled.^ In the authorities just cited it was said 



reversing the Vice-Chancellor in 4 
Sim. 82; Owens v. Dickinson, 1 Cr. & 
Ph. 48^ The decision of Lord Eldon, 
-in Nantes v. CorrocK, 9 Ves. 189, that 
the stock of a feme covert was not 
bound by her engagements because it 
was not Uable. to execution, also 
shows that the hability is not by way 
of appointment, for if it were, the oir-" 
cumstance that stock was a species of 
property not liable to execution 
would be entirely immateriaJ. 

■ 3 Desauss, 417. 

2 Frazier's Trustees v. Center, 1 
McCord Ch. 270, 275. 

' Magwood V. Johnston, 1 Hill Ch. 
228; Robinson v. Dart's Ex'rs, Dud- 
ley's Eq. 128, 131; Reid v. Lamar, 1 
Strobh. Eq. 27; Wallace v. Craig, 27 
S. C. 514. 

' 1 Rawle, 231. It was decided in 
Thomas v. Fplwell, 2 Wharton, 11, 
that a married woman could not 
devise an estate settled to her sepa- 
rate use if no power to do so was 



conferred by the trust instruinent. 
This decision has been followed in 
Cobb's Appeal, 168 Pa. 175. 

5 Rogers v. Smith, 4 Pa. 93; Thomas 
V. Folwell, 2"Whart. 11; Wallace v. 
Coston, 9 Watts, 137; Cochran v. 
O'Hem, 4 W. & S. 95; Stahl ». 
Grouse, 1 Pa'. Ill; Jones's Appeal, 
57 Pa'. 369; .McMullen v l^eatty, 
56 Pa. 389; West v. West, 10 S. & 
R. 445; Holliday v. Hively, 198 Pa. 
335; Hays's Estate, 201 Pa. 394. 
See Maurer's Appeal, 86 Pa. 380. 

« 24 Pa. 263. 

' Penna. Ins. Co. «, Foster, 35 Pa. 
134; Wright v. Br6wn, 44 Pa. 224; 
Shonk tK Brown, 61 Pa. 320. A simi- 
lar ruling has been made as to- the 
Married Persons' Property Acts of 
1887 and 1893. See MacConnell v. 
Lindsay, 131 Pa. 476; Cobb's Ap- 
peal, 168 Pa. 175; Hays v. Leonard, 
155 Pa. 474, and Holliday v. Hively, 
198 Pa. 342. Upon this point Mac- 
Connell V. Lindsay is not. overruled 



CH. IV.l 



TRUSTS FOR flARRIED WOMEN. 



189 



that there is a manifest difference between the legal separate 
estate, which is due to the provisions of the statute, and the 
equitable separate estate, which is the creature of Courts 
of Equity; and this view seems to be taken, also, by the courts 
in Illinois,^ and, after some fluctuation, by those in Alabanaa.* 
But a different opinion on the subject has been entertained in 
other states, and the general tendency of the decisions is, 
perhaps, to put estates of both kinds, so far as regards the 
power of the feme over them, upon the same footing.' The 
South Carolina rule was, however, adopted in Rhodef Island,^ 
Tennessee,* Mississippi,^ Illinois,^ and, formerly, in Mary- 
land.* It has been ejcpressly reiterated in North CaroEna.^ 
It was also recognized, to a limited extent, in Ohio.^" 

On the other hand, the English rule has been followed in 
a number of the states. It was adopted in New York in 
Jaques v. The Methodist Church, ^^ overruling Chancellor 
Kent, 'who had decided the other way,^^ and has been recog- 
nized in other decisions."- It has been followed in New Jer- 



by MaoConnell v. Wright, 160 Pa. 
275. 

'Cookson V. Toole, 59 111. 515; 
Bressler v. Kent, 61 111. 426; Cole v. 
Van Riper, 44 ill. 58; Carpenter v. 
Mitchell, 50. 111. 470; Rogers v. Big- 
gins, 48 111. 211. 

2 See Short v. Battle, 52 Ala. 456, 
overruling Molton v. Martin, 43 Ala. 
651; Glenn ».. Glenn, 47 Ala. 204, and 
Denechaud v. Berry, 48 Ala. 591. 
See Lippincott v. Mitchell, 94 U. S. 
767. 

» Yale V. Dederer, 18 N. Y. 265; 
Ballin v. Dillaye, 37 N. Y. 35; Peake 
V. La Baw, 21 N. J. Eq. 282; Willard 
V. Eastham, 15 Gray, 328. 

« Metoalf V. Cook, 2 R. I. 355. 

5 Marshall v. Stevens, 8 Humph. 
159; Hart v. Bayliss, 97. Tenn. 72. 
See, however, Young v. Young, 7 
Cold. 461. 

« Dotjr V. Mitchell, 9 Sm. & M. 435; 
Musson V. Trigg, 51 Miss. 172. 

' Swift V. Castle, 23 111. 209; Bress- 
ler V. Kent, 61 111. 426; overruling 



Young V. Graff, 28 111. 20; Ennor v.. 
Hodson, 134 HI. 32. 

' Miller v. Williamson, 5 Md. 219; 
Tarr v. Williams, .4 Md. Ch. 68; but 
see Cooke v. Husbands, 11 Md. 492. 
_ See, also, the American note to Hulme 
V. Tenant, 1 Lead. Cas. Eq. 741; Hill 
on Trustees, 657 (4th Am, ed.); and 
Perry on Trusts, § 655. 

Kirby v. Boyette, 116 N, C. 167; 
118 N. C. 244. See, in this connec- 
'tion, Newlin v. Freeman, 4 Ired- Eq. 
312. ~ . . 

" Machir v. Burroughs, 14 Ohio St. 
519. 

"17 Johns. R. 648. See, also, 
Dyett ». North Am. Coal Co.,. 20 
Wend. 570; Powell v. Murray, 2 Edw. 
Ch. 636; Gardner u. Gardnei*, 7 Paige 
Ch. 112; Cumming v, WiUj.anison, 1 
Sandf. Ch. 17; Curtir v. Epgei; 2 
Sandf. -Ch. 287; Mallory i», .Vandep- 
lieyde<3 Barb. Ch. 10; 1 Const. 453. 

*2 3 Johns. Ch. 78; 17 Johns. 548. 

" See, Dyett v. Central Trust Co., 



190 



TBUSTS FOR MARRIED WOMEN. 



[part I. 



sey/ Connecticut,'' Kentucky,' Virginia/ Alabama/ Georgia,* 
Missouri,' Minnesota,* Maryland," and California; '" and 
also in Vermont (to a certain extent)," and in Florida.^* 
It has likewise been followed in the federal courts." THe 
above states, too, have followed substantially the English 
rule upon the subject of the liability of the estates of 
^emes covert to their separate engagements." And of late 



140 N. Y. 54.- See, also, Yale ». 
Dederer, 18 N. Y. 265; 22'N. Y. 456.' 

> Perkins v. Elliott, 23 N, J. Eq. 529; 
Vankirk v. Skillman, 34 N. J. L. 109^ 

^ Imlay ti. Huntington, 20 C!onn. 
175; Wagner v. Ins. Co., 88 Conn. 536. 

' Coleman v. Wooley, 50 Ky. 
320; Burch v. Breckenridge, 56 Ky. 
482. This subject is now regulated 
by statute in this state. 

* Vizonneau v. Pegram, 2 Leigh, 
183; Dezendorf v. Humphreys, 95 Va. 
473. 

•Bradford v. Greenway, 17 Ala. 

„ 805;Jenkinsi» McConico, 26 Ala.213; 

Smyth V. Fitzsimmons, 97 Ala. 451. 

See Scharf v. Moore, 102 Ala. 468, 

as to the effect of the code. 

• Fears v. Brooks, . 12 Ga. 200; 
Dallas V. Heard, 32 Ga. 604. By 
statute, Kile v. Fleming, 78 Ga. 1. 

' Kimm v. Weippert, 46 Mo. 532; 
Cadematori v. Gauger, 160 Mo. 352; 
Ryland v. Banks, 151 Mo. 1. 

» Pond I). Carpenter, 12 Minn. 430. 

' Buchanan v. Turner, 26 Md. 5. 

'» Miller v. Newton, 23 Cal. 554. 

" Frary v. Booth, 37 Vt. 78. 

" Lewis V. Yale, 4 Fla. 418. 

" Cheever ». Wilson, 9 Wall. 119. 
See Ankeney v. Hannon, 147 U. S. 
118, where the subject is fully dis- 
cussed. 
/ " Gunter ». Williams, 40 Ala. 572; 
Armstrong v. Ross, 20 N. J. Eq. 109; 
Vankirk ». Skillman, 34 N. J. L. 
109; Batchelder v. Sargent, 47 N. H. 
265; Imlay v. Huntington, 20 Conn. 
175; Cooke v. Husbands, 11 Md. 492; 
Penn. v. Whitehead, 17 Gratt. 603; 



Frazier ti. Brownlow, 3 Ired. Eq. 237 
(but not for general engagements, 
Knox V. Jordan, 5 Jones' Eq. 175); 
Bradford v. Greenway, 17 Ala. 797; 
Ozley V. Ikelheimer, 26 Ala. 332; Lill- 
ard V. Turner, 56 Ky. 374; Burch 
V. Breckenridge, 56 Ky. 482; Harris v. 
Harris, 7 Ired. Eq. Ill; Whitesides 
u. Cannon, 23 Mo. 457; Schafroth 
V. Ambs, 46 Mo. 114; Miller _«. Brown, 
47 Mo. 504; Lewis v. Yale, 4 Fla. 418; 
Robert v. West, 15 Ga. 123; Dallas o. 
Heard, 32 Ga. 604. In New York, 
see Yale v. Dederer {suTpra) ; Ballin v. 
Dillaye, 37 N. Y. 35; Corn Exchange 
Ins. Co. V. Babcook, 42 N. Y. 614; 
Maxon v. Scott, 55 N. Y. 247; Rohr- 
bach V. Ins. Co., 62 N. Y. 47; Man- 
hattan, etc., Co. Ji. Thompson, 58 
N. Y. 80; ConUn v. Cantrell, 64 N. Y. 
217. In Wisconsin, Todd v. Lee, 15 
Wis. 365; 16 Wis.' 480. In Tennessee, 
see Hughes v. Peters, 1 Cold. 67. A 
good deal of discussion has taken 
place, of late years, as to how far the 
separate estate of a married woman 
under the statutes in the different 
states is chargeable with her engage- 
ments. The authorities upon the 
subject will be found collected and 
examined in the American note to 
Hulme V. Tenant, 1 Lead. Cas. Eq. 
756 e( seq. (4th Am. ed.) See also 
Deering v. Boyle, 8 Kan. 525; Wicka 
V. Mitchell,»9 Kan. 80; Whiteley ». 
Stewart, 63 Mo. 363; Cookson r. 
Toole, 59 111. 515; Halley ». BaU, 68 
111. 250; Haight ». McVeagh, 69 III 
624; Husband v. Epling, 81 HI. 172. 



CH. IV.] TRUSTS FOR MARRIED WOMEN; 191' 

years the doctrine has been pushed in some states .to great 
lengths. Thus, it is now settled in Missouri that when a 
married woman gives a promissory note the law implies, 
in the absence of pi'oof to the contrary, an intention to bind her 
separate estate; and although it is permissible to show that 
no such intention existed, yet such intention not to bind the 
separate estate must appear on the face of the instrument, 
otherwise the estate will 'be charged.^ 

On the other hand, it has been expressly decided in Vir- 
ginia that the note, or other general engagement, of a;married 
woman owning separate estate creates no specific lien on 
such estate.* 

Those states which were mentioned as having followed the 
lead of the South Carolina case of Ewing v. Smith, in regard 
to the power of a married woman to convey her separate 
estate, have also generally refused to adopt the English rule 
upon the subject of the /erne's power to bind it by contract.' 
In South Carolina, Ohio, and Massachusetts, however, the 
separate estate is chargeable for debts contracted on its 
account and for its use, but not for the general engagements 
of the/eme.^ 

104. Restraints on Anticipation. 

The English rule above stated, itiTeference to the powers of 
a feme covert over her separate estate, and the liabiUty of that 
estate to her engagements, naturally led to some plan by 
which the operation of the rule could be avoided, and the 
will of the donor carried out by giving the married woman the 
property in such a way that it would be projected against 

' Kimm v. Weippert, 46 Mo. 532; Pearson, 9 Foster, 77; Perry on 

Metropolitan Bank v. Taylor, 62 Mo. Trusts, § 661. 
340; Burnley v. Thomas, 63 Mo. 390. * Magwood v. Johnston, 1 Hill Eq 

See, also, Gage v. Gates, 62 Mo. 412, 228; Cater v. Eveleigh, 4 Dess. 19 

as to the means of enforcing the James v. Mayrant, A Dess. .TOl: 

charge. Adams w. Mackey, 6 Rich. Eq. 75 

* French v. Waterman, 79 Va. Machir v. Burroughs, 14 Ohio St. 519 

617. Willard v. Eastham, 15 Gray, 328; 

' Lancaster v. Dolan, 1 Rawle, 231; Rogers v. Ward, 8 Allen, 3^8; Tracy 

Metcalf ». Cook, 3 R. I. 355; Litton v. v. Keith, 11 Allen, 214. See Hebum 

Baldwin, 8 Humph. 209; Bailey v. v. Wamer, 112 Maas. 271; Taylor v. 

Barker." 30 S. G. 238. 



192 TEUSTS FOR MARRIED WOMEN. [PART I. 

herself (so to speak) and her creditors, as well asagairist her 
husband and his indebtedness. The plan adopted was the 
insertion, in the trust instrument, of the clause against 
anticipation which was first invented by Lord Thurlow, 
and Used in drawing Miss Watson's settlement.^ This 
clause, viz., "not by way of anticipation," was held to be 
effective in imposing a restraint upon alienation,^ and became 
the usual language in settlements.' No particular form of 
words is, however, necessary. It is enough if the intention 
to impose the restraint be clearly expressed,' and the re- 
straint may be implied when a different interpretation would 
defeat the purpose of the donor.* Thus, when it appeared 
that the paramount object of the will was to providie a fund 
for th^ support and maintenance of the testator's wife dur- 
ing her lifetime, and for the rhaintenance and education of 
his children, it Was held that the power of alienation was im- 
pliedly but effectually forbidden;^ and in Nix v. Bradley 
it was held that" the same conclusion was to be drawn from 
the general language and scope of the will.* 

The clause 'against anticipation, however, applies only to 
future income; it will not be operative to remove arrears of 
income from the control of the feme or from process at the 
suit of a creditor, as to arrears which have become due. be- 
fore the judgment.'' 

It will be observed that this restraint upon alienation is a 
violation of the ordinary rules of property, the general prin- 
ciple being that the power of aUenation is a necessary and 

1 Lewin, 1007 (12tK Eng. pd.) See, « 6 Rich. Eq. 43. 

also, Hood-Barrs «. Heriot, [1896J- ' Hood-Barrs «. Heriot, [1896] A. C. 

A. C. 174 (where a history of this 174, reversing Lord Esher, M. R., in 

clause is given), and Bank v. James, Loftus v. Heriot, [1895] 2 Q. B. 212. 

95 Tenn. 8. See Hood-Barrs w. Cathcart, [1894] 2 

2 Parkes v. White, 11 Ves. 221. Q. B. 559. "In Hays's Estate, 201 
'Notes to Huliae p. Tenant, 1 Pa. 391,'itwas held that under proper 

Lead. Cas. Eq. 520. language for payment of income 

* Weeks v. Sego, 9 Ga. 201; Nixon solely upon the woman's own re- 

V. Rose, p.2 Gratt. 425; Perkins v. ■ ceipt, income accrued but not paid 

Hays, 3 Gray, 405; Nix ». Bradley, over was not liable to attachment in 

6 Rich. Eq. 43. the hands of the trustees. 
' Perkins v. Hays, 3 Gray, 405. 



CH. IV.] TEUSTS FOR MARRIED WOMEN. 193 

inseparable incident of ownership which cannot be taken 
away by any condition or stipulation in the grant. But, it 
being once.settled that a wife might enjoy a separate estate 
as a jfeme sole, the laws of property attached to this new 
estatfe; and it was foimd, as part of such laws, that the power 
of alienation belonged to the wife, and was destructive of 
the security intended for her estate. Equity again interfered, 
and by another violation of the laws of property, supported 
the validity of the prohibition against alienation.^ 

106. For whose benefit separate estates may be created. 

An important question which naturally presents itself in 
regard to these trusts is, "For whose benefit can they be 
created? " For it is obvious that the trust may be attempted 
to be created for the benefit either of a woman covert at the 
time, or ii^ contemplation (more or less immediate) of cover- 
ture, or without any such contemplation; and the question 
arises, Is there any distinction between these cases? In 
other words, can a sole and separate use be limited to a Jeme 
sole which will come into operation whenever coverture 
takes place; or can the trust be called into being merely for 
the benefit of a woman actually married at the time of its 
creation? 

In F^ngland this question was" considered in the year 1834, 
in the case of Massey v. Parker." It was there decided that 
where a trust of this description was created for the benefit 
of a feme sole, it would, upon her marriage, be ineffectual 
to debar her husband from his marital rights. This decision, 
which was made by Lord Cottenham when Master of the 
Rolls,* was, however, afterwards overruled by the same 
judge, as Chancellor, in the subsequent case of Tullett v. 
Armstrong,* where the rule was laid down that a valid sepa- 

' By Lord Cottenham, in Tullett ». married woman "to bind her interest 

Armstrong, 4 My. & Cr. 405. See, in any property," notwithstanding a 

also, Nickell v. Handly, 10 Gt&tt. 336. restraint upon anticipation. See 7n 

In England, by sec. 31 of the "Con- re Little, 40 Ch. D. 423. 

veyancing and Law of Property" '2M.&K. 174. 

Act of 1881, the court is given di»- • Sir C. Fepya. 

eretionary power to authorize a ' 4 M. & Cr. 877. 

13 



194 TRUSTS FOR MARRIED WOMEN.' [PART I. 

rate trust could be created for the benefit of a wopaan, un- 
ma,rried at the time, whfch would come into active operation 
whenever a marriage took place; and which, moreover, 
would not cease entirely upon discoverture, but would re- 
vive and again take effect upon a subsequent marriage. 
This rule has been adhered to in England, and is now firmly 
established by many decisions. 

But it must here be remarked that while a trust for the sole 
and separate use of a feme maybe created wlien she is sole, 
yet, if she chooses to make any disposition of the property 
before coverture, she is at Uberty to do so; and that no re- 
straint upon her power of alienation will be tolerated if she 
elects, to exercise that power before she becomes covert. In 
other words, a feme when discovert has the same power over 
an estate limited to her sole and separate use, as. any other 
person sui juris; she has the option of determining the trust 
when unmarried; if she does not choose so to determine it, 
it will attach upon the first or any subsequent coverture.^ 

106. Rules in the United States upon this subject. 

The decision in Massey v. Parker has been followed in 
Pennsylvania,^ in Arkansas,^ in North Carolina,* and in 
Massachusetts.^ In the first-named state it must now be, 
considered the settled law that a Separate use trust cannot 
be created except for a married woman, or one in immediate 
. contemplation of marriage,^ and that it ceases on discover- 
ture,'' and does not revive on a second marriage.* Whether 

' See, in this connection, the case history of the law on this point ia 

of Wright V. Wright, 2 Johns. & H. given), and King's Estate, 147 Pa. 

647. , 410, where a trust for the testator's 

^Hamersley v. Smith, 4 Whart. widow was held not to be a "sole and 

126; Smith v. Starr, 3 Whart. 62. separate" use. Carman v. Bumpus, 

' Lindsay v. Harrison, 8 Ark. 302. 244 Pa. 136. 

■•Miller v. Bingham, 36 N. C. ' Or on divorce, Kdenig's Appeal, 

423. 57 Pa. 352; Lee's Estate, 207 Pa. 218;' 

« Moore v. Stinson, 144 Mass. bat not on mere desertion by the 

594- husband; People's S. Bank v. Denig, 

» McBride v. Smyth, 54 Pa. 245; 131 Pa. 253. See, also, Cai^ell v. 

Snyder's Appeal, 92 Pa. 504; Neal's Lovett, 80 Ga. 36. 
Appeal, 104 Pa. 214. See Quin's Es- , sHamersley ». Smith, 4 Whart. 

tate, 144 Pa. 449 (where a very full 126; Bush's Appeal, 33 Pa. 85; Mo- 



CH. IV.] TKTTSTS FOR MARRIED WOMEN. 195 

"immediate contemplation of marriage" may or may not 
exist in any particular case, must, it is evident, be a question 
of fact not always easy to determine. It has been said that 
the creation of the trust constitutes the evidence of the fact 
being in the contemplation of the donor or devisor, and when 
this is followed within a reasonable time by consummation 
of the marriage, it concludes the proof. ^ 

But in' other «tates of the Union the present English rule 
has been adopted.'' 

107. General conclusions; Lewin's propositions. 

The restraint upon alienation, of course, will not prevent 
the feme from disposing of the property settled to her sepa- 
rate use, if she chooses to do so before marriage, or in the 
interval between different covertures; but the restraint will 
attach whenever coverture takes place. This is the English 
rule. But in those states where -the separate use can only 
be created for the benefit of women who are either actually 
married, or in immediate contemplation of inatrimony, the 
clause in regard to anticipation is subject to the sairie rules, 
and it will be ineffectual except in the two specified cases. 

The law upon this subject may, perhaps, be summed up 
in the questions propounded by Lewin, and in the answers 
thereto — as follows: — 

1. Can property given to the separate use of a woman be 
disposed of by her before her marriage? This must be an- 
swered in the affirmative. 

2. If the property is not so disposed of, does the separate 
use clause come into effective operation upon first and sub- 
sequent covertures? This must also be answered in the 
affirmative. 

Keeo. MoKinley,33Pa.92;FreyvogIe 'Beaufort v. Collier, 6 Humph. 

V. Hughes, 56 Pa. 228; Kufttzleman'a 487; Shirley v. Shirley, 9 Paige Ch. 

Estate, 136 Pa. 151. See, in this 363; Fellows ti. Tann, 9 Ala.- 1003; 

connection, O'Brien v. Ash, 169 Mo. Waters ti. Tazewell, 9 Md. 291; Stag- 

283. gers v. Matthews, 13 Rich. Eq. 154. 

> Wells V. McCall, 64 Pa. 207; See Winchester v. Machen, 75 Md. 

Springer v. Arundel, 64 Pa. 218; £38. 
Ogden's Appeal, 70 Fa. 501. 



196 TRUSTS FOR MARRIED WOMEN. ' ,[PART I. 

3. Is the clause against anticipation valid? It is. , 
It may be added .that under the most recent EngMsh au- 
thorities, the trust for the sole and separate use extends to 
the absolute interest in personalty, and to the corpus, as well 
as to the incomeiof real estate.* 

If a married woman dies without having disposed of her 
separate estate by will, her husband, except when controlled 
by sta,tute, will take the same interest therein as he does. in 
her legal or ordinary equitable estates.^ 

108. Pin-money trusts. 

Akin to trusts for the separate use of married women, are 
what are known as "pin-money" trusts. ♦ 

Pin-money may be defined to 1^ a yearly allowance settled 
by the husband upon the wife, for her clothes or other sepa- 
rate personal expenses; and its principal incident is that its 
purpose is expenditm-e, and not accumulation. Hence, if 
a married woman suffers this allowance to remain unpaid 
for several years, she will be unable to recover more than one 
year's arrears from her husband or his estate; for the reason 
that, as this allowance is designed to be appropriated for her 
personal expenses, it must be presumed that if she has not 
drawn upon this fund-, she has been supplied by her husband 
from other sources, and that it would therefore be unjust, 
after he has once supplied her wants^ from time to time, to 
hold him responsible for the accumulation of her allowance, 
and thus, in effect, compel him to pay it twice. When, 
however, the wife's allowance has, in point of fact, been paid 
short, she may recover the accumulations.' • On the other 
hand, where it appears that the husband has actually paid 
for his wife's expenses, she cannot even recover the one 
year's arrears. Nor can the wife's executors recover from 
the husband or his estate even one year's arrears; because 
the allowance is entirely personal with the wife, and the rea- 
son for its payment ceases with her death. 

1 Taylor v. Meads, 4 DeG., J. & S. Donnington v. Mitchell, 1 Green Ch. 

597. 239; Cooney v. Woodbufn, 33 Md. 

» Stewart ». Stewart, 7 Johns. Ch. 320; Perry on Trusts; § 668. 

299; Faries's Appeal, 23 Pa. 29; • Ridout e. Lewie, 1 Atk. 269. 



CH. IV.] TRUSTS FOR MARRIED WOMEN. 197 

The leading case upon the subject is Howard v. Pigby,* 
where the principles applicable to this species of trust will 
be found discussed. 

As to arrears of the wife's separate income other than pin- 
money, the rule is different. When the husband/ and wife 
have lived together, the latter caimdt charge her husband 
or his estate, as her debtor, for arrears of separate income 
which she has permitted him to receive. The court will not 
give any account against the husband or his representatives 
in respect of arrears of the wife's separate inconte, not pin- 
money, received by him with her express or impUed per- 
mission.* 

109. Wife's equity to a settlement. 

It has been already mentioned that the right of the hus- 
band to his wife's property is subject to this qualification, 
viz., that if for the purpose of reaching her equitable property 
he is obUged to go into Chancery, equity will compel him at 
her request to noake a suitable provision for herself and her 
children. 

110. How enforced. 

It had been at first supposed that this right of the wife was 
of a passive rather than an active nature, and while capable 
of being enforced -in a suit in which the husband was com- 
plainant, and which had been instituted by him for the pur- 
pose of getting in his wife's equitable choses in action, could 
not be actively asserted by the wife herself a^ plaintiff. This 
idea, however, was dissipated by the leading case of Elibank 
V. MontoUeu,' and it was there held that the wife could come 
into Chancery as complainant for the purpose of having a 
settlement made. 

The better opinion is that the same rule exists in the United 
States.* 

' 8 Bligh N. R. 224. As to the' » Edward v. pheyne, 13 App. Caa. 

wife's parapkemalia and what jewels 398. , , 

and other articles are included in the • 5 Ves. Jr. 737. 
term, see Graham v. Londonderry, ♦Hill on Trustees, 632 (4th Am. 

3 Atk. 393, and note to Hulme v. ed.); Ferry on Trusts, J 629;,KenQey 

Tenant, 1 Lead. Gas. Eq. 538 el seq. v. Udall, 5 Johns. Gh. 464; Udall v. 



198 TRUSTS FOR MARRIED WOMEN. [PART I. 

Where, however, the property out of which a settlement 
is sought is real estate, the wife,-it is said, caJmot-come in as 
plaintiff.^ But in a case in Vermont, a settlement was al- 
lowed the wife out of realty — ^and this, too, although it was 
noi an equitable estate.^ y 

In the United States, also, settlements have, in some cases, 
been compelled, when actions have been brought to recover 
the wife's property in the common-law courts.^ 

This equity is believed to exist in all of the United States 
ejccept New Hampshire and North Carolina, and it has also 
been recognized in the federal coin-ts.* In those states 
where the property of married women is secured to them by 
statute, the reasons for the existence of this right have passed 
away, and as such 'statutes exist in nearly all of the states of 
the Union, the subject is not of such prac*tioal importance 
as formerly; ^ and in England, also,' the Married Wonian's 
Property Act of 1882^ and 1893, have greatly diminished 
the necessity for the application of this doctrine. It is still, 
however, proper to say a few words concerning the wife's 
"equity to a settlement" (as it is termed), and to notice how 

Kenney, 3 Cow. 590; Brown v. Wads- Humph. 54; Coppedge v. Threadgill, 

worth, 168 N. Y, 225; Dearin «. Fitz- 3 Sneed, 577; James \>. Gibbs, P. & H. 

Patrick, Meigs, 551; Poindexter v. 277; Lay i>. Brown, 13 B. Mon. 296; 

Jeffries, 15 Gratt. 363, and the dicta Barron u. Barron, 24 Vt. 375; Page 

in many cases cited inthe American v. Estes, 15 Pick. 369; Gardner v. 

note to Murray v. Lord Elibank, 1 Hooper, 3 Gray, 398. In North 

Lead. Cas. Eq. 670. See, howevier, Carolina, see Bryan v. Bryan, 16 

Jackson v. Hill, 25 Ark. 223. N. C. 47; Laasiter ». Dawson, 17 N. C. 

> Cleaves v. Paine, 1 DfeG., J. & 383. In Pennsylvania it is enforced 

Sm. 87. by preventing a recovery in a legal 

^ Curtis V. Simpson, 72 Vt. 232. ' action, unless upon the terms of mak-. 

' Rees V. Waters, 9 Watts, 94; ing a suitable "provision for the wife. 

Perry on Trusts, § 629. Rees «.- Waters, 9 Watts, 94. In 

*Ward i). Amory, 1 Curtis, 432;, New Hampshire it has not been recog- 

Tucker v. Andrews, 13 Me. 124; niiied. Parsons w. Parsons, 9 N. H. 

Short V. Moore, 10 Vt. 446; Howard 309; Hill on Trustees, 631 (4th Am. 

11. Moffatt, 2 Johns. Ch. 206; Wiles ed.); notes to Murray v. Lord Eli- 

II. Wiles, 3 Md. 1; Poindexter ti. Jef- bank, 1 Lead. Cas. Eq. 670. 

fries, 15 Gratt. 363; Durr v. Bowyer, ' See Perry on Trusts, § 645, 

2 McCord's Ch. 368; Andrews if. note 9. 

Jones, 10 Ala. 401; Davis «. New- » 45 and 46 Vtet., c. 75; 55 and 67 

ton, 6 Met. 537; Chase t). Pahner, 25 Vict.,~ c. 63 (supra, 5 97). 
Me. 342; Wilks v. Fitzpatrick, 1 



CH. IV-l TRUSTS FOR MARRIED WOMEN, 199 

it may be enforced, out of what property, against whom, and 
for whose benefit. 

When property of a married woman is vested in trustees, 
they may with perfect safety hand over the same to her hus^ 
band, and take his receipt therefor, except, of course, in the 
case of property settled to her separate use; ^ or where, the 
common-law rule has been altered by statute. But the trus- 
tees may, if they choose, refuse to make payment to the 
husband; who is then obliged, in order to get in. the fund, to" 
come into court and to submit to his wife's right to a settle- 
ment. In such a case the trustees will not be hable to costs. 
-Thg wife's eqiiity to a settlement will also be reco^aized by 
the courts, in bills filed by the creditors of the husband to 
reach the wife's choses in action.'^ 

If the husband has become the purchaser, as it were, of 
his wife's property by settlement before marriage, he will not 
be compelled to make any allowance for her out of her equi- 
table funds. In such a case he is considered to have acquired 
a right to the whole ,of his wife's fortime, not only by virtue 
of his marital right, but by purchase for value.' This rule, 
however, does not apply to property which the feme a'cquires 
subsequent to the coverture, and which is not included in 
the contemplated settlement. Out of this property she is 
entitled to 'her equity to a settlement.* Nor will the/e?7ie be 
deprived of this equity by a voluntary settlement a/ter mar- 
riage.* 

The wife cannot claim a settlement if she has an adequate 
. provision already.* 

If a woman at the time of her marriage owes more than the 
amount of her property,, she will not be entitled to a settle- 
ment-;^ but if the property exceeds the^amount of her debts, 

' Perry on Trusts, § 627. « Hill on Trustees, 409; though see 

' Smith V. Kane, 2 Paige Ch. 303; Dunkley v. Dunkley, 2 -DeG., M. & 

1 Lead. Cas. Eq. 496. ' , G. 390; and Matter of Beresford, 1 

» Perry on Trusts, 5 635; Erekine's . Dess. 263. 

Trusts, 1 K. & J. 302. ' Notes to Murray v. Lord Elibank, 

♦Garforth v. Bradley, 2 Ves. 677. 1 I^ad. Cas. Eq. 670. 

See Matter of Beresford, 1 Deas. 263. ' Bonner v. Bonner, 17 Beay.'86. 



200 TRUSTS FOR MARRIED WOMEN. [PART I. 

she may be entitled to a settlement after provision has been 
made for the payment of her debts. ^ 

A married woman may preclude herself from claiming her 
equity to a settlement by fraud,^ or by improper conduct, 
such as adultery.' * 

111. How waived. 

The wife may waive her right to a settlement, imless her 
children have already acquired an interest therein. This 
waiver takes place on a separate examir^ation of the wife, 
by which it is ascertained that her consent is given of her 
own free will, and is not obtained from her by fraud^ or force.* 
This consent cannot be taken if the wife is an infant.^ 

112. To what property it attaches. 

It is well settled that the equity to a settlement will attach 
to real estate, and to chattels real as well as to personal prop- 
erty ; and it will attach to any property which becomes the 
subject of an equitable suit, even though it is legal in its 
nature.* 

, The equity to a settlement exists iu respect of the wife's 
life interest as against an insolvent or bankrupt husband, or 
as against his general assignee in bankruptcy or insolvency.'' 
But not as against her husband who supports her; or as 
against his particular assignee for value,* even if he does 
not support her. ' The assignment of the wife's life interest 
will be good only during coverture, and will not bind her if 

she survives. 

\ 

' Barnard v. Ford, L. R. 4 Ch. ' Stubbs v. Sargon, 2 Beav. 496; 

247. Abraham ». Newoombe, 12 Sim. 566. 

' Lush's -Trusts, L. R. 4 Ch. 591. See, however, Jennings ». Jennings, 2 

' Carr v. Eastabrooke, 4 Yes. 146; Heisk. 283. 

In re Lewin's Trus^, 20 Beav. 378. • Perry on Trusts, § 633. ^ 

Contra, Carter V. Carter, 22 Miss. 59. 'Sturgis v. Champneys, 5 My. & 

* Beaumont v. Carter, 32 Beav, Cr. 97; Vaughan v. Buck, 1 Sim. N. R. 

586; I Lead. Cas. :^q. 468 (4th Eng. 284; Ruffles v. Alston, L. R. 19 Eq. 

ed.) Examinations of a similar 539. See Beeman v. Cowser, 22 

character are prescribed by statute Ark. 429; Perry, on Trusts, § 634. 

in many states where a conveyance ' Tidd v. Lister, 10 Hare, 140; 3 

of the real estate of a feme covert is DeG., M. & G. 857. See Sims v. 

made. Tobin v. White, 142 La. 84. Spalding, 2 Duvall, 121. 



CH. IV.] TBUSTS FOR MARRIED WOMEN. ^ 201 

The court will not order a settlement of reversionary per- 
sonal property of the wife.^ 

The court will not ordinarily settle the whole fund upon 
the wife. A half is considered a fair settlement.^ The whole 
may, however, be settled under special circumstances.^ 

113. Against whom, and in whose favor. 

This equity is enforceable as against the husband and all 
pCTsons claiming iinder him, whether they are assignees for 
value,* or voluntary assignees, or assignees in bankruptcy.* 
And this equity is paramoimt to the right of set-off which 
an exector or administrajbor, frOm whom a legacy or distribu- 
tive share is due to the wife, has by reason of any indebted- 
ness of the husband to the estate.* This, however, must be 
subject to the qualification noticed above, that where the in- 
terest, out of which the settlement is sought, is a life estate, 
it cannot be enforced as against- the husband if he supports, 
the wife, 6t against his particular assignee for value. The 
reason of this exception is that the assignment of the life 
estate will be good only during coverture.^ 

The equity to a settlement is the privilege of the wife, and 
can be enforced only by her, and may be waived by her after 
a separate examination. Nevertheless, when made it will 
enure to the benefit of the children. The children, however, 
cannot assert the right themselves; and if the wife dies before 
decree, the husband will take.^ 

' Osbom V. Morgan, 9 Hare, 432. ' ' As to the parties against whom 

• 1 Lead. Cas. Eq. 464 (4th Eng. the wife's equity to a settlement will' 
ed.) The children will be provided be" enforced, see Kenney v. Udall, 5 
for. Brown ». Wadsworth, 168 N. Y. Johns. Ch. 464; Udall v. Kenney, 3 
225. Cow. '591; Hanland v. Myers, 6 

» Perry on Trusts, § B36; Taunton Johns. Ch. 25; Page v. Estes, 19 
i;. Morris, L. R. 8 Ch. D. 453. , Pick. 269; Phillips v. Hassell, 10 

'Macaulay v. Philips, 4 Yes. 19; Humph. 197; Coppedgeo.Threadgill, 

Haviland v. Bloom, 6 Johns. Ch. 3 Sneed, 577; Moore v. Moore, 14 B. 

180. Mon. 259; Durr v. Bowyer, 2 Mc- 

» Taunton v. Morris, L, R. 8 Ch. D. Cord Ch. 368; Duvall v. The Farmers' 

453. Bank, 4 G. & J. 283; Bebnett v. Dil- 

• See In re Briant, 39 Ch. D. 471. lingham, 2 Dana, 436. 

See, also, 1 Lead. Cas. Eq. 447; » Perry on Trusts, § 627; 1 Lead. 
Perry on Trusts, § 632. Cas. Eq. 460. 



202 TRUSTS FOR MARRIED WOMEN. [PART I. 

When a person has committed a contempt by marrying a 
ward of- the court, the court will order a settlement of her 
property to be made; and under such circumstances the 
settlement will be made to embrace her property of aJl kinds^ 
legal as well as equitable, and will generally be of the whole 
estate.^ So, when the husband has misbehaved, or has be- 
come utterly insolvent, settlements of piirely legal property 
have, been enforced. So also it is a settled doctrine that 
equity will lay its hands on the property of the wifewhich-is 
within its power, for the purpose of providing a maintenance 
for her when she is abandoned by her husband, or prevented 
• from cohabitation by his ill-treatment.* These cases pro- 
ceed upon somewhat different doctrines, however, from the 
pure equity to a settlement already considered.* 

In some states of the Union maintenanise in the nature of 
alimony out ol the husband's estate has been decreed to the 
wife under proc^eedings in equity. It is true that the general 
rule in England is against exercising such a jurisdiction,* 
and many of the American decisions are to the same effect.* 
But, on the other hand, there are not wanting authorities 
to the effect that such a jurisdiction will be assumed, and it- 
seems to be conceded, on all sides, that courts of equity will 
lay hold of any ground of jurisdiction which the particular 
case may present for the purpose of affording the desired 
relief." The subject was elaborately considered in Mississippi 

' 1 Lead. -Gas. Eq. 496; Perry on * See Ball v. Montgomery, 2 Ves. 

Trusts, §631. 196; Story's Eq. Jurisp., § 1422. See, 

' Nicholls ». Daavers, 2 Vem. 671; also, article in 24 Am. L. Reg. 1. 

Williamsw.Callow, 2Vern. 752;New- ^ «Fisehli v. Fischli, 1 Blackf. 360; 

some V. Bowyer, 3 P. Wms. 37; Cecil Peltier ». Peltier, Harring. Ch. 19; 

0. Juxon, 1 Atk. 278; Duraond ». Mar Rees v. Waters, 9 Watts, 90; Pomeroy 

gee, 4 iTohns. Ch. 322. . v. Wells, 8 Paige Ch. 406; Parsons v. 

'Perry on Trusts, §631. In some , Parsons, 9 N. H. 309; McGee v. 

cases in the' United States main- McGee, 10 Ga. 477; Doyle ». Doyle, 

tenance in the nature of alimony has 26 Mo. 646; Yule v. Yule, 10 N.- J. 

been decreed by courts of equity. Eq. 138; Trotter v. Trotter, 77 111. 

Purcell V. Purcell, 4 Hen. & Munf. 510. 

507; Patersoh v. Paterson, 1 Hal. Ch. « See Purcell v. Purcell,' 4 Hen. & 

389. In some states jurisdiction in Munf. 507; Galland v. Galland, 38 

divorce is made a head of equitable Cal. 265; Butler v. Butler, 4 Littell, 

relief. 202; Almond v. Ahnond, 4 Band. 662; 



CH. IV.]^ -TRVSTS FOB MABHIED WOMEN. 203 

in Garland v. Garland,* and the jurisdiction supported. A 
d.ifferent conclusion was, however, reached ia Illinois.'' 

114. Gifts from husband to wife ; contracts. 

In considering the equitable doctrines which are applicable 
to the property of married women, the subject of gifts from 
the husband to the wife requires to be noticed. 

The existence of a married woman being supposed to be 
merged in that of her husband, a conveyance from the latter 
to the former at common law is of no effect. 

Deeds which operate at common law, and not under the 
Statute of Uses, pass no title to the wife.' 

In equity, however, the rule is otherwise. Gifts from the 
husband to the wife will be upheld, and if the legal title does 
not pass out of the former, he will, nevertheless, be considered 
to be-a trustee for his wife, and the transaction will be upheld 
as a settlement.* And the. same resiilt will follow when the 
gift emanates from a third person, the husband assenting 
to it and treating the property as belonging exclusively to 
the wife.* Equity, however, while upholding the gift, has 
thought it right to attach to it this qualification, viz., that 
the settlement must be a reasonable one. Equity wUl not 
assist the husband to impoverish himself for the sake of his 

Logan V. Logan, 2 B. Mon. 142; Pra^ have been followed in Kenyon v. 

ther V. Prather, 4 Dess. 33; Rhame ». Farris, 47 Conn. 510, and approved 

Rhame, 1 MoCord Ch. 197; Graves by a dictum in Walker v. Simpson, 7 

I). Graves, 36 la. 310; Dqle v. Gear, W. & S. 83, and by text-writers, 1 

14 Haw. 554; Clisby v. Clisby, 160 Bish. M. & D., §§ 1190-1191; Pom. 

Ala. 572; Brady «. Brady, 144 Ala. Eq. Jurisp., §§1299-1300; 2 Kent 

414. Com. 146, note; Schouler on Dom. 

» 50 Miss. 694. Reins., § 61, note. They were not 

• Trotter v. Trotter, 77 111. 510. It approved in Skinner v. Tirrell, 159 

has been held, in some English cases Mass. 474. 

(Harris v. Lee, 1 P. Wms. 482; Mar- ' Crawford v. Whitmore, 120 Mo. 

low V. Pitfield, 1 P. Wms. 568; Deare 144. 

V. Soutten, L. R. 9 Eq. 151; Jenner v. * McKennan v. Phillips, 6 Whart. 

Morris, 3 DeG., F. & J. 45), that a 571; Williams'? Appeal, 47 Pa. 307; 

person who advances money to a Thompson .. AUen, 103 Pa 44-48;. 

*^ . , , . , Sipley.w. Wass, 49N. J. Eq. 463. See, 

married .woman for necessanes-she ^^ p^^^ ^ 'j^^j^^^ ^^ ^ ^^^ 

not bang supphed by her husband— Breriiieman v. Dillon, 296 111. 140. 
ia entitled to a remedy m equity 6 Gentry ». McReynolds, 12 Mo. 
against the husband; and these cases 533; Welch v. Welch, 63 Mo. 60. 



204 TRUSTS FOR MARRIED WOMEN. [PART I. 

wijfe.' To do so would be to injure his credit, and to act un- 
fairly towards those who might afterwards become his 
creditors. The settlement, therefore, must not be actually 
fraudulent; that is, it mu^t not be made while he is in em- 
barrassed circumstances, or about to engage in a hazardous 
business, or in any way be calculated to deceive and injure 
bona fide creditors;' and it must be a reasonable proportion 
of his estate. What that proportion is, does not appear to 
be definitely settled.^ 

Contracts between husband and wife will sometimes be 
enforced in equity.' But Courts of Chancery do not rec- 
ognize the same right in husband 'and wife to contract with 
each other that they would 'have at common law were they 
single. Such contracts will be examined with great caution; 
and will only be enforced when made in good faith, upon a 
valuable consideration, and when Ihey are just, reasonable 
and certain in their terms.* And although, at common law, 
contracts between a man and woman would be extinguished 
by subsequent intermarriage, yet in equity the partjes will 
be compelled to execute them. Of such agreements illustra- 
tions may be found in those cases in which antenuptial 
contracts are made without, the intervention of trustees.^ 

116. Contracts for separation. 

Before leaving the subject of trusts for married women, it 
will be proper to say a few words upon a kindred topic, 
namely, contracts for separation between husband and wife. 

•Stickney v. Bormin, 2 Pa. 67; Hollingshead (N. J.), 110 A. 19; In 

Lina v. Lenhardt, 127 Mo. 271. re Hoffman, 199 Fed. 448; Brown 

'Sims v. Rickets, 35 Ind. 181; v. Clark, 80 Conn. 419; Kimball v. 

Benedict v. Montgomery, 7 W. & S. Kimball, 75 N. H. 291. 

238; Coatea B. Gerlach, 44 Pa. 43. <Boland v. O'Neil, Admtr., 72 

• Tennison v. Tennison, 46 Mo. 77; Conn. 217; Fennell's Estate, 207 Pa. 

Bradish ti. Gibbs, 3 Johns. Ch. 523; 309. 

Livingston v. Livingston, 2 Johns. ' See Neves v. Scott, 9 How. 196; 

Ch. 637; More v. Freeman, Bunb. R. Imlay v. Huntington, 20 Conn. 146; 

2OO5 Lehr v. Beaver, 8 W.'& S. 102; West v. Howard, 20 Conn. 581; De 

Fisher v. Filbert, 6 Pa. 61; Fallpn v. Barante v. Gott, 6 Barb. 492; Healy v. 

McAlonen, 15R. I.223;Bohannoni>. Rowan, 5 Gratt. 414; Story's Eq., 

Travis, 94 Ky. 59; Hollingshead v. § 1370. 



CH. IV.] TRUSTS FOB MARRIED WOMEN. 205 

It has bebn decided by the highest authority and in many 
cases, that agreements for- future separation are invalid, and 
such must be considered as the settled law both in England 
and in the United States.^ 

But agreements for immediate separation, although 
formerly discountenanced as against the policy of the law, 
are now sustained in England, and are looked upon with 
more favor in this country.^ In Wilson v. Wilson' it was 
decided by the House of Lords that the Court of Chancery 
might compel parties to articles for an agreement of separa- 
tion to execute a deed in pursuance thereof. The agreement, 
however, must be founded on a suflScient consideration;* 
and the deed to be executed must not contain any conditions 
contrary to law, or in contravention of public policy.* The 
contract must not be entered into unadvisedly, and must 
contain suitable provisions.* 

A covenant not to sue for the restoration of conjugal rights 
is a proper covenant to insert in a deed of separation, exe- 
cuted under a decree of the coiu-t, which directs articles of 
separation to be carried dut; and such a covenant will bje 
enforced by an injunction restraining the husband cor wife 
from suing.'' And an injunction will be granted to restrain 
a husband from molesting his wife, or a wife from molesting 

' Westmeath v. Westmeath, 1 Dow. 9 Ex. 38, and Hart v. Hart, 18 Ch. D. 

& C. 519. Notes to Stapilton tf. Star 670. 

pilton, 2 Lead. Cas. Eq. 855 (4th Eng. * Wakond v. Walrond, Johns. 18; 

ed.), where the English authorities , Beach v. Beach, 2 Hill, 260; Griffin v. 

are collected; Hill on Trustees, 668-9 Banks^ 37 N. Y. 623. 

(4th Am. ed.); Perry on Trusts, § 672, ' Vansittart v. Vansittart, 2 DeG. 

And see Evans v. Evans, 93 Ky. 510; & J. 255. See Boland v. O'Neil, 72 

Terkelsenw. Peterson, 216 Mass. 531; Conn. 217. 

Anderson v. Anderson, 122 Wis. 483; , « Hungerford v. Hungerford, 161 

In re Jeannot (Mich.), 180 N. W. ^ y 550 ' ' 

482; Chamberlin v Chamberjin, 184 '-, ^^^^ „ ^^^^ 4 D. F. & J. 221, 

N. Y. S. 464; Baldwin v. Kingston, . ., .„u:.„t :_ elaboratelv ex- 

247 Fed. 163; Wilde v. Wilde, 37 Neb. ^^^^ ]'°^ ? j w .u wm 

891 ; Dowers v. Hutchinson, 67 Ark. ^|"«1 ^^'^f Westbury; Wilson v. 

15. In Hunt v. Hunt, 4 D. F, & J. Wilson, 1 H. L. Cas. 538. See, alSp, 

221, the subject will be found most Williams v. Baily, L. R. 2,Eq. 731; 

clearly explained by Lord Westbury. Besant v. Wood, 12 Ch. D. 605; Clark 

« King V. Mollohan,' 61 Kan. 683. v. Clark, 10 P. D. 188; In re Abdy, 

« 1 H. L. Cas. 538; 5H. L. Cas. 40. Rabbath v. Donaldson, [1895] 1 Ch. 

See, also, Gibbs w. Harding, L. R. 5 455 
Ch. 336; Charlesworth v. Holt, L. R. 



206 TEUSTS FOE MARRIED WOMEN. [PART. I. 

her husband, contrary to covenants contained in deeds of 
separation.^ Whether an injunction would be granted to 
restrain proceedings for a restitution of conjugal rights, 
wheii there has been merely an agreement for articles of 
separation, seems to be doubtful;^ but it, has been decided 
that if a separation has taken place, and, subsequently, a 
contract for reconciliation is entered into, such contract 
will be enforced in equity by decreeing the performance of 
one of its terms providing for a conveyance of realty.' 

Jt is well settled that when a ^separation deed has been 
actually executed, the court will enforce any of its stipular 
tions which are in accordance with law.* 

Some of the more recent authorities in this country have 
followed the ruling in Wilson v. Wilson. Thus, in Pennsyl- 
vania, Ohio, Massachusetts, Indiana, and Arkansas, the 
law in that case has been expressly recognized; * and the 
doctrine appears to be approved in Vermont.® 

In other states, however, it has been held that equity will 
refuse to decree specific performance of separation articles.^ 
But in so far as such agreeinents settle the rights of property 

' Sandeta v. Rodway, 16 Beav, 207; Ark. 15. See Smith v. Knowles, 2 Gr. 

Flower v. Flower, 20 W. R. 231. Cas. 413, where a parol agreement for 

, 'See the remarks of Lord St. separation was held, under the cir- 

Leonards in Wilson v. Wilson, 5 H. cumstances, invalid; and also Switzer 

L. Gas. 59, 60; and of Lord Chelms- v. Switzer, 26 Gratt. 574. 

ford in Vansittart v. Vansittart, 2 De ' See Barron v. Barron, 24 Vt. 375. 

G. & J. 255. ' ' ' See Champlin v. Champlin, 1 

• See Barbour v. Barbour, 49 N. J. Hoff. Gh. 55; Simpson v. Simpson, 4 
Eq. 429. Dana, 140; Rogers v. Rogers, 4 Paige 

* See Vansittart v. Vansittart, 2 De Ch. 518; Garter v. Carter, 14 Sm. & 
G. & J. 255; note to Stapilton v. M. 59; McGrocklin v. McGrocklin, 2 
Stapilton, 2 Lead. Cas. Eq. 853; B. Men. 370; Collins v. Collins, Phil. 
Barnes v. Klug, 129 App. Div. (N. Y.) Eq. 153; Hill on Trustees, 669 (4th 
192; Adams v. Adams, 23 Pa. Sup. Am. ed.); Switzer «. Switzer, 26 Gratt. 
353. 674; Tallinger v. Mandeville, 113 

' Hitner's Appeal, 54 Pft. 114. See, N. Y. 427, annotated in 28 Am. Law 

also, button v. Duey, 3 Pa. 100; Dill- Reg. (n. s.) 471, and Baum v. Baum, 

inger's Appeal, 35 Pa. 357; Comm. t>. 109 Wis. 47, where specific perform- 

Richards, 131 Pa. 218; Thomas v. ance of a partially executed oral 

Brown, 10 Ohio St. 260; Fox v. Davis, agreement was refused. But see 

113 Mass. 255; Dutton v. Dutton, 30 Clark v. Fosdick, 118 N, Y. 14. A 

Ind. 465; Bow<^rs ti. Hutchinson, 67 contract for maintenance, after a 



CH. IV.] 



TRUSTS FOR MARRIED WOMEN. 



207 



between husband and-wife, they will, if just'and equitable, be 
upheld.^ 

In England, and in some of the United States, the ifiter- 
vention of a trustee in a separation deed does not now appear 
to be necessary;" but in other states the decisions are the 
other way.' 



separation has taken place, will be 
enforced. Galusha v. Galusha, 116 
N. Y. 635"; Aspinwall o. Aspinwall, 
49 N. J. Eq. 302; Mockridge v. Mock- ■ 
ridge, 62 N. J. 570. , 

1 Carey v. Maqkey, 82 Me. 516; 
Rains v. Wheeler, 76 Tex. 390t King 
V. Mollohan, 61 Kan. 683. See Foote 
V. Nickerson, 70 N. H. 496, for a 
qualification of the doctrine and 
an elaborate review of the authori- 
ties. 

2 Frampton v. J^-ampton, 4 Beav. 
294; Button v. Duey, 3 Pa. 100; Bar- 
ron V. Barron, 24 Vt. 37^ Bowers 



»., Hutchinson, 67 Ark. 15 f Weeks 
V. L'Ecluse,^ 177 N. y. S. 284. 

» Bettle V. Wilson, 14 Ohio, 257; 
Carson v. Murray, 3 Paige Ch. 483; 
Tourney w. Sinclair, 3 How. (Miss.) 
324; Watkinsi). Watkins, 7 Yerg. 283; 
Simpson v. Simpson, 4 Dana, 140; 
Carter v. Carter, 14 Sm. & M. 59; Hill 
on Trustees, 669 (4th Am. Id.); 
Perry on Trusts, 1 673. See gener- 
ally, on c6ntracts for separation, 1 
Bishop on Mar., Div. and Sepavfir 
tion, §§ 1288 et seq.; SunderUh v. 
Sunderlin, 123 (N. Y.) App. Div. 421 
(living together). , 



CHAPTER V 



TEUSTS FOB C^ARITIBS. 



116. Uncertainty in the object a 

characteristic of a charitable 
use. 

117. Importance of charitable uses. 
11^8. Origin of charitable uses; Vidal 

V. Girard's Executors. 

119. Statute of Elizabeth. _ 

120. Classification of charitable gifts; 

Gifts for eleemosjfnary pur- 



121. Gifts for educational purposes. 

122. Gifts for religious purposes. 

123. Gifts for public purposes. 

124. Definition of a ch^itable use; 

Mr. Binney's definition; Jack- 
son tf.lPhillips., 



125. Characteristics of a charitable 
use; uncertainty of the object. 
The cy pres doctrine. 
Jackson e;. Phillips. 
Cy pres (doctrine in England 

prerogative and judicial. 
Soundness of the latter doctrine. 
130. Rules of4he different states. 
131. . Nature of the uncertainty which 
should avoid a charitable gift. 

132. Resulting trusts in cases of char- 

itable gifts; Thetford School 
Case. 

133. Perpetuities and Accumulations. 

134. Statutes of Mortmain. 



126. 
127. 
128. 

129. 



116. Uncertainty in the object a characteristic of a chari- 
table use. 

It has abeady been said that three things are necessary 
to raise a valid trust — sufficient words to create it, a definite 
subject, and a certain or ascertained object. To this rule 
there is a very noticeable exception in the cases of trusts for 
charitable uses, wherein the trust will be sustained although 
the objects to be benefited may not be defined with that pre- 
cision which would be requisite in trusts of an ordinary or 
private description. Uncertainty in the object is one of the 
characteristics of a true, technical, charitable use, because 
if the beneficiaries are defined with precision, the ordinary 
'doctrines of equity, which have Been already referred to, 
would be sufficient to support it. 

It is when a trust, wliich, if it were for an individual, would 
fail for want of certainty in the object, is supported in equity 
because it is for a charity that the term, charitable use, is to 
208 



CH. v.] TRUSTS FOR CHARITIES. , 209 

be in strictness applied. A trust for a charity which is de- 
clared with the same certainty in all respects as ordinary 
trusts, is, of course, capable of being sustained by the ordi- 
nary rules of property; ' but a trust, which, according to 
those rules, would fail for uncertainty, is upheld in chancery 
when the beneficiaries are objects of charity,, and is then a 
charitable use.^ 

117. Importance of charitable uses. 

Trusts for charitable uses have occupied a large share of 
the attention of Courts of Chancery both in England land in 
this country; and it is perhaps not too much to say that in 
the federal courts and in the tribunals of^many of the states 
of the Union the questions which grow out of the doctrine 
of charitable uses have been discussed with a degree of in- 
dustry, of learning, and of research that can scarcely be 
paralleled in the annals of jurisprudence. A reference to the 
reports of the great cases in which the wills of Stephen 
Girard, of Sarah Zane, and of Francis Jackson were con- 
strued will be sufficient to bear out the correctness of, this 
assertion.' 

» Thus a devise to a corporation to Dinwiddie,. 139 Ind. 128; Perry on 
distribute the rents among twenty- Trusts, 5 687. SeeHarringtoni;.Pier, 

four persons flamed, is not charitable, ^^ ^'f^'^^l' ^i ^""l"/ °°''^'' ^°^ 
, . •! . i J .: ui 4.„ »„„!, „» Wis. 149, where Ruth w.OberbrunnOT, 

but it.gives a vested nght to each of ^^ ^.^ ^ .^ ^^^^ ^^^ exiJlained 

the cestet gue <ru^ten< Liley «. Hey, ^^^ ^j^^ language of the statute in 
1 Hare, 580. And a gift for the bene- that state considered. SeeBarkleyw. 
fit and care of oertain specified horses, Donnelly, 112 Mo. 561. Palmer «. 
ponies and hounds is not a charitable Oiler (Oh.), 131 N. E. 362; In re 
gift, for the objects are defined. Inre Johnson (Or.), 196 P. 385; Barn- 
Dean, 41 Ch. D. 556. "If a trust is well's Estate, 269 Pa. 443. 
for any particular persons, it is not a » Vidal «. Girard's Executors, 2 
charity. Indefimteness is of its es- How. 128; Philadelphia r. Girard's 
senoe;" by Sharswood, J., in Phila- Heirs, 45 Pa. 27; Magill ». Brown, 
delphia v. Fox, 64 Pa. 182. See, also, Brightly, 350; Jackson u. PhiUips, 14 
Swift's Ex'rs v. The Beneficial Sooi- Allen, 539; Minns e. Billings, 183 
ety, 73 Pa. 362; Old South Society ». Mass. 126. See, also, Baptist Asso- 
Crocker, 119 Mass. 1; Atty.-Gen. v. ciation i>. JEIart's Ex'rs, 4 Wheat. 1; 
Clark, 167 Mass. 203; Fay v. Howe, Inglis ». Sailor's Snug Harbor, 3 Pet. 
136 Gal. 599; Troutman e. De Bois- 99; Fontain ti. Ravenel, 17 How. 387; 
siere, 66 Kan. 1. Perin v. Carey; 24 How. 506; Lorings 
, 2 Jackson v. Phillips, 14 Allen, 550; «. Marsh, 6 Wall. 337; Gallego's Ex'rs 
Board of Copim'rs of Rush Co. v. „, Att.-Gen., 3 Leigh, 460; Kinnaird •». 
14 



210 TRUSTS FOB CHABITIES. [PART I. 

118. Origin of charitable uses; Vidal v. Girard's Executors. 

These trusts had been at one time supposed, both in Eng- 
land and in this country, to owe their origin to the Sta,tute 
of 43 Elizabeth, c. 4, commoiily known as the Statute of 
Charitable Uses; which was, in poiut of fact, an act designed 
merely to hunt up existing charities and enforce their ad- 
ministration; but which, because it emunerated certain trusts 
as charitable, came to be referred to as the origin of the ju- 
risdiction of chancery over charitable uses, and as defining 
those uses which were to be considered charitable. This 
opinion existed in England,^ and was adopted in the United 
States in the case of the Trustees of the Baptist Chiu-ch v. 
Hart's Executors.^ In 1844, however, in the great case of 
Vidal V. Girard's Executors,^ this opinion W9,s shown to 
be (erroneous. In his celebrated argument ia -that case, 
Mr. Binriey, one of the counsel for the will of Stephen 
GriraM, showed, by reference to the proceedings of the Court 
of Chancery ia the time of Queen Elizabeth (which had been 
^published by order of the record commission), that that tri- 
bunal had exercised jurisdiction over trusts of this description 
prior to the passage of the Statute of Charitable Uses. The 
cases mentioned in the report of the record comnoission are 
about fifty in niunber; and although as to some of them it 
may not be satisfactorily demonstrated that they were in- 
stances of charitable uses, yet, upon the authority of .these 
precedents, it is now settled that the jxu-isdiction of chancery 
upon this subject does not depend upon the statute, but 
existed independently of, and prior to, that enactment. 

In the struggle with the pope, Henry VIII. was obliged to 
attack many charitable institutions for the purpose of assert- 
ing the power of the crown as against the claim of papal 

Miller's Ex'rs, 25 Gratt. 107; Witman 265; Ackesnnan v. Fiehter, 179 Ind. 

V. Lex, 17 S. & R. 88; Methodist 401; Dykeman v. Jenkines, 179 Ind. 

Church i>. Remington, 1 Watts, 218; 664; Moseley v. Smiley, ^71 Ala. 593; 

Henry t». Deitrioh, 84 Pa. 291; HiUiard v. Parker, 76 N. J. Eq. 447; 

Dickson v. Montgomery, 1 Swan. 448; , Wilson Estate, 81 Neb. 809;. 

Green v. Allen, 5 Humph. 177; Frier- 1 1 Spenoe's Eq. 589. 

eon V. Gen. Assem. Pfesb. Church, 7 '4 Wheat. 1. 

Heisk. 693; Almy v. ,Jones, 17 R. I. » 2 How. 128. 

1 , . 



CH, v.] TRUSTS FOR CHARITIES. 211 

supreinacy; and hence many charities were abolished by 
statute..* But in the reign of EUzabeth, after the conflict 
for ecclesiastical supremacy had been settled in favor of the 
English monarch, and the success of the Reformation had 
been assured, the necessity for institutions of an eleemo^- 
nary character began to reassert itself, and several statutes 
were passed for the purpose of restoring and encouraging 
charitable foundations.^ These acts finally culminated, in 
the year 1601, in the Statute of Charitable Uses, akeady 
mentioned.' 

The questioi^ as to the origin of the jurisdiction upon this 
subject has this practical importance — ^viz., that in those 
states where the statute of EUzabeth is not in force or has 
not been adopted, the right of courts of equity to assume con- 
trol over questions of this kind mjist depend upon their 
original jurisdiction.* 

119. Statute of Elizabeth. 

While, however, the statute of Elizabeth is not to be re- 
garded as the.^g'm of charitable uses, 'it has always been 
looked to as furnishing a definition of what uses are to be 
considered as charitable; although in those states in which the 
statute is not in force the courts will not confine themselves 
to the objects enumerated in the statute.' These uses are 
set forth in the preamble to the statute, and are as follows: 
"releife of aged, impotent and poore people * * * for main- 
tenance of sicke and maymed souldiers and marriners, schooles 
of leaminge, free schooles and schoUers in univ-sites, for re- 
paire of bridges, portes havens causwaies churches seabankes 

1 Perry on Trusts, § 691. 525; Holland o, Alcock, 108 N. Y. 

' 1 Eliz., 0. 4, §§ 34, 40, 85; 8 Eliz., 332; Halsey v. Convention of Protest- 

c. 11 ; 35 Eliz., c. 3; 39 Eliz., c. 4, 21 ; 31 ant Epis. Church, 75 Md. 225; Trinity 

Eliz., c. 6; 43 Eliz., c. 2 and 3; Perry Meth. Epis. Ch. v. Baker, 91 Md. 539 

on Trusts, § 691. Harrington v. Pier, 105 Wis. 485: 

•43 Eliz., c. 4; Perry on Trusts, Clayton v. Hallett, 30 Colo. 231 

§ 692. See Commissioners o. Pemsel, Snider v. Snider, 70 S. C. 555. 
[1«91] App. Cas. 531-581. = Witman ». Lex, 17 S. & R. 88; 

« See Pell v. Mercer, 14 R. I. 412; Kimberly's Estate, 249 Pa. 483: 

R. I. Hosp. Trust Co. v. Olney, 14 R. Tappan v. Deblois, 45 Me. 122; Har- 

I. 449; Williams v. Williams, 8 N. Y. rington v. Pier, 105 Wis. 486, 



212 TRUSTS FOR CHARITIES. " [PART I. 

and highewaies, for educac5n and p'fennente of orphans * * * 
releif e stocke or maintenance of houses of correccOn, * * * for 
mariages of poore maides, for supportacon ayde and helpe 
of young tradesmen, handiecraftesmen and persons decayed 
* * * for releife or redemption of prisoners or captives, for 
aide or ease of any poore inhabitant concninge paymente 
of fifteenes settinge out of souldiers and other taxes. " In 
addition to the above, many other objects have been de- 
cided to be charitable, because th^y were analogous to those 
mentioned in the statute, and were considered to be in con- 
formity with the spirit^ of the preamble, or, in other words, 
although not within the strict letter of the statute, they have 
been held to fall within its "equity." Thus a gift for the 
"advancement of the Christian rehgion among infidels" 
is a good charity.^ So is a gift for repairing a church; " for 
building an organ-gallery;^ for repairing a parsonage;* or 
for the "worship of God." ^ A gift for purposes of education 
is a charity;* so is a gift to a town for public improvements;^ 
and also a gift "To the commanding officer for thp mess of 
the regiment or for the poor of the regiment." * On the 
other hand, trusts "for the political restoration of the Jews 
to Jerusalem;"^ "to secure the passage of laws granting 
women a right to vote and hold oflfice;" ^^ "for a corporation 
to enable it to keep a larger supply of com in London for the 
market;" " "to build a monument, tomb, or vault for the 
donor;" " "for the purchase pi advowsons or presenta- 

* Att.-Gen. v. William and Mary 'a ' Att.-Gen. v. Heelis, 2 S. & St. 67. 
College, 1 Ves. Jr. 245. « Moore v. Somerset (1909), 2 Ch. 

' Att.-Gen. v. Ruper, 2 P. Wms. 410. See also Harrington ti. Watts 

125; Att.-Gen. v. Armstrong (Mass.), (1905), 2 Ch. 60. 

120 N. E. 678. " Habershon v. Vardon, 4 De G. & 

' Att.-Gen. v. Oakaver, 1 Ves. Sr. Sm. 467. 

536. > i» Jackson v. Phillips, 14 Allen, 571 ; 

* Legard W.Hodges, 3 Bro.Ch. 441. Bacon v. Ransom, 139 Mass. 117; 
" Att.-Gen. !). Pearson, 3 Merv. 353. contra: Garrison v. Little, 75 111. App. 

See Decamp v. Dobbins, 29 N. J. Eq. 402. 

36. - " Att.-Gen. w. Haberdashers' Co., 

»Vidal V. Girard, 2 How. 128; 1 My.&K.420. 
Whicker v. Hume, 7 H. L. Cas. 124; i" Hoare ii. Osborne, L. R. 1 Eq. 

Smithsonianlnst. Case, 7H. L. Cas. 585; though see Adnam v. Cole, 6 

*155 (cited); In re Sayre, 166 N. Y. Beav. 353. To keep certain graves 

S. 499. in repair is not a charity. Kelly v. 



CH. v.] 



TRUSTS FOR (PARITIES. 



213 



tions;" ^ for the presentation of a prize Qup "to encourage 
yacht-racing," ^ are illustrations of gifts which have been 
determined not to be charities.^ A gift for "charity" or for 
"charitable purposes," or for "benevolent" institutions, 
without adding more, is a good charitable bequest; ^ and 
so is a gift to a charitable association, although no charitable 
use is designated.^ 



120. Classification of charitable gifts; Gifts' for eleemosy- 
nary purposes. 

The purposes for which charitable' gifts may be made are 
so numerous that it is almost impossible to classify them; 
nevertheless, the fom- following heads,^ without including 
all possible charitable bequests, may be said to embrace a 
large majority of them: — 

1. Gifts for strictly eleemosynary purposes, such as "to 



the poor, 



>> 7 II 



to a parish,"* "for releasing poor debt- 



Nichola, 17 R. I. 306; Estate of Gay, 
138 Cal. 552; Mason v. Bloomington 
Ass'n,237111.442. A society for the 
purpose of benevolence among its 
members only is not a charity. Beau- 
mont V. Meredith, 3 V. & B. 180; 
Lawson's Est., 264 Pa. 83; Cunnack 
V. Edwards, [1896] 2 Ch. 681; Young 
. Men's Society v. Fall River, 160 
Mass. 409; Mason v. Perry, 22 
R. I. 475; Troutman v. De Boissiere, 
66 Kan. 1; City of^Newpcwt v. Ma- 
sonic Temple Assn., 108 Ky. 333. 

' Inre HUnter, Hood v. Atty.-Gien. 
[1897] 1 Ch. 518. 

'In re Nottage, [1895] 2 Chan. 
649. 

' In the ease of In re Faveaux, 
Crossj;. London Anti-Vivisection So- 



ciety, [1895] 2 Ch. 501, it was held 
that a gift to discourage vivisection 
of animals was a charitable gift. A 
gift for "philanthropic" purposes is 
not a charity. In re Macduff, Mac- 
duff V. Macduff, [18p6] 2 Ch. 466; 

I Tavshanjian v. Abbott, 59 Misc. (N. 
Y.) 642. 

* Legg V. Asgill, 1 Turn. & Jlus. 
265, n.; Mills v. Farmer, 19 Ves. 483; 
s. c. 1 Mer. 44; Murphy's Est., 184 

s Pa. 310; St. James Orphan Asylum v. 
Shelby, 60 Neb. 796;, Minns v. Bil- 
lipgs, 18^ Mass. 120. But see Adye 
V. Smith, 44 Conn. 60. 

5 Evangelical Association's Appeal, 
35 Pa. 316; Am. Bible Soc. v. Am. 
Tract Soc, 62 N. J. Eq. 219. 
' This was the classification made 



' Att.-Gen. v. Matthews, 2 Lev. 
167; Howard v. American Peace So- 
ciety, 42 Me. 288; Asylum v. Lefebre, 
69 N. H. 238; Heuser ». Harris, 42 111. 
425; Bullard v. Chandler, 149 Mass. 
'632; Conklin v. Davis, 63 Conn. 377; 
In re Darling, Farqubar v.- Darling, 



[1891] 1 Ch. 50; Grant v. Saunders, 121 
la. 80; In re MoUer, 178 N. Y. S. 682. 
8 Att.-Gen. v. Blizard, 21 Beav. 
233; Att.-Gen. v. Old South Society, 
13 Allen, 474; State v. Gerard, 2 Ired. 
Eq. 210; Shotwell v. Mott, 2, Sand' 
Ch. 46; Overseers o. Tayloe, Gibn. 336. 



214 



IBtJSTS >0B CHARITIES. 



[PAflT I. 



ore," * "for a hospital," " "for orphans," ' "for the benefit of 
fugitive slaves," * "for poor relations," * "for the relief of 
Indians," ' "for the reUef of aged females," ^ "for providing 
and maintaining a home for the aged," * or for widows and 
children "in distressed circumstances," ® for "a rest home 
for worthy working girls," ^° or for the suppression of the 
manufacture and sale of intoxicating liquors," '-for tem- 
perance work in said city," ^^ or for taking care of domestic 
animals." 

121. Gifts for educational purposes. 

2. Gifts for educational purposes; as to a college for educat- 
ing orphans " (although there may be preferences among 



by Sir Samuel Romilly in his argu- 
ment in Morice v. The Bishop of Dur- 
ham, 10 Ves. 522-532, and it has been 
recently followed in the House of 
Lords. See Lord McNaughten's 
judgment in Commissioners v. Pemsel, 
[1891] App. Cas. 583. See also In re 
Macduff, Macduff v. Macduff, [1896] 
2 Ch. 466. 

*Att.-Gen. v. Ironmongers' Co., 2 
My. & K. 576. See flaynes v. Carr, 
70 N. H. 463. 

' Corp. of Reading v. Lane, Duke, 
81; Att.-Gen: v. Kell, 2 Beay. 575; 
Roosenw. Hospital (Mass.), 126 N. E. 
392; Dykeman ». Jenkines, 179 Ind.^ 
549. 

« Vidal V. Girard's Ex'rs, 2 How. 
128. "For an orphans' home for the 
friendless poor of all denominations." 
Kemmerer ti. Kemmerer, 233 111. 
327. 

* Jackson v. PhiUips, 14 Allen, "571. 

' Brunsden v. Woolredge, Amb. 
507; Swasey v. American Bible Soc, 
57 Me. 527; Smith e. Harrington, 4 
Allen, 566. 

' Magill V. Brown, Brightly, 347. 

' Gooch V. Association for Relief, 
etc., 109 Mass. 567; Sherman v. Gong. 



Miss. Soc, 176 Mass. 349; Eliot's 

Appeal, 74 Conn. 586. 
' AUen V. Stevens, 161 N. Y. 122; 

Norris v. Loomis, 215 Mass. 344; 
'In re Buck, Bruty v. Mackey, 

[1896] 2 Ch. 727; RoweU v. Claggett, 

69 N. H. 201. 

— '" Sherman v. Cong. Miss. Soc, 176 

Mass. 349. 

'1 Haines v. Allen, 78 Ind. 100. 

'^ Harrington v. Pier, 105 Wis. 

485. 

" University of London v. Yarrow, . 

1 De G. & J. 72; In re Douglas, 35 Ch. 
D. 479; Minna v. Billings, 183 Mass. 
126; Allen v. Wedgewood (1915), L 
Ch. 113. 

•» Vidal V. Girard's Ex'rs, 2 How 
128; Laswell ti. Hungate, 266 Fed 
635; Clement t». Hyde, 50 Vt. 716 
Miller v. Atkinson, 63 N. C. 537. See, 
also. Paschal v. Aeklin, 27 Tex. 173 
Miller v. Porter, 53 Pa. 292; Halsey v. 
Convent P. E. Church, 75 Md. 275 
Barkely v. Donnelly, 112 Mo. 561 
Clayton v. Hallett, 30 Colo. 231 
Crow V. Clay County, 196 Mo. 234. 
A devise for the purpose of educating 
the descendarUs of. two persons named 
is not valid as a .charitable use, 
Johnson v. De Pauw University, 116 
Ky. 671. 



CH. v.] 



TEUSTS FOR CHARITIES. 



215 



beneficiaries),' for advancement of learning,' for free educa- 
tion of young men for preparation for entrance to the United 
States Naval Academy or to fit them to become mates or 
Btiasters in the Merchant Marine Service of the United 
"States,' for libraries, and literary institutes,'' for the diffusion 
of knowledge among the working cldsses,^ to erect a free gram- 
mar school,* or to promote the moral, intellectual, and physi- 



•Vidal V. Girard's Ex'rB, 2 How. 
128; Dexter v. Harvard College, 176 
Mass. 192; Washburn College v. 
O'Hara, 75 Kan. 700. 

' Stevens v. Shippen, 28 N. J. Eq. 
487; Taylor v. Bryn Mawr Coll., 34 
N. J. Eq. 101; Whicker v. Hume, 1 
DeG., M. & G. 506; 7 H: L. Cas. 123. 
See The- President of the U. S. v. 
Drummond (the Smithsonian Institu- 
tion Case), cited in 7 H. L. Cases, 
*155. 

' Taylor v. Columbian University, 
226 U. S. 126. 

* Drury v. Inhabitants of Natick, 
10 Allen, 169; Donohugh v. Library 
Company of Philadelphia, 5 W. N. C. 
196 (C. P. No. '2 of Philadelphia 
County). In the last case the defini- 
tion of a public charity was called for 
with some precision,. The Constitu- 
tion of Pennsylvania exempted from 
taxation "institutions of purely pub- 
lic charily;" and the question was 
whether the Library Company of 
Philadelphia fell within that phrase. 
It was held that it did. "The Li- 
brary," said Mitchell, J., in delivering 
the opinion of the court below, "is a 
trust, and while it is the property 
of the corporation, and, therefore, 
in a certain sense, of the corporate 
stockholders, yet it is not their prop- 
erty in any full legal or commercial 
sense. * * * Being thus a trust, its 
purpose and scope must be looked for 
in ,th« grant. It is not a questioi\ of 
how. the revenue, is derived, but to' 
what'purpoee and vnth what intent it is 



devoted." And this view was adopted 
by the Supreme Court (Dono- 
hugh's Appeal, 86 Pa. 306), and sub- 
sequently extended in Philadelphia v. 
Women's Christian Association, 125 
Pa. 581; Northampton Co. v. Lafay- 
ette Coll., 128 Pa. 132; Episcopal 
Academy v. Philadelphia, 150 Pa. 
565. (But see White tf. Smith, 189 Pa. 
222, for a criticism on these last- 
mentioned cases.) The same condu- 
eion had been reached in the inter- 
pretation of similar constitutional 
provisions in other states. Qerke v. 
Purcell, 25 Ohio, 229, approved and 
followed in Humphries «. The Little 
Sisters, 29 Ohio, 205; Benevolent So- 
ciety V. Kelly, 28 Oreg. 173; Church 
V. Hinton, 92 Tenn. 188. See, also, 
Burd Orphan Asylum v. School Dis- 
trict, 90 Pa. 21 ; Philadelphia v. Ma- 
sonic Home, 160 Pa. 572; Philadelphia 
ti. Keystone Battery A, 169 Pa. 526 
(the case of a military company 
maintained by public and private 
subscriptionlg); Phila. v. Penna. Hos- 
pital, 154 Pa. 9; Sunday-sChool 
Union v. Phila., 161 Pa. 307; Penna. 
Hospital V. Delaware Co., 169 Pa. 305, 
and Philadelphia v. Overseers, 170' 
Pa. 257. Soo in this connection, Mil- 
ler's Ex'rs V. Commonwealth, 27 
Gratt, 116; Raley v. Umatilla Co., 
15 Or. 172; Fordyce v. Library Assn., 
79 Ark. 550; Camp v. Society, 173 
N. Y. S, 581. 

5 Sweeney v. Sarnpson, 5 Ind. 465. 

» Hadley v. Hopkins A,cad., 14 
Pick. 240; State v. MoGowen, 2 Ired. 
Eq. 9; Burke v. Burke, 259 111. 262; 



216 



TRUSTS FOR CHARITIES. 



[part I. 



cal instruction of a city/ to increase the salaries of teachers,* 
or "to pay the fees of tuition and instruction, the cost of text 
books, room rent and reasonable boa!rd," ' or for the founda- 
tion of scholarships and fellowships,* or the cultivation of 
art,* or for instruction in mechanical arts,* or "for charitable 
arid educational purposes therein" (i. e., the state of New 
Hampshire) .'^ 



122. Gifts for religious purposes. 

3. Gifts for religious purposes; as for the advancement of 
Christianity among the infidels,* for the dissemination of the 
gospel,'' for home missions, i" for distributing Bibles and 
religious tracts,^^ for the benefit of ministers of the gospel,^^ 
and for building, ornamenting, or repairing churches.^' It 
may be here observed that the only religious use which is 
mentioned in the statute of Elizabeth is that for "repairs 



Albany College v. Monteith, 64 Or. 
356. 

'Lowell's Appeal, 22 Pick. 215; 
Pickering v. Shotwell, 10 Pa. 27, 

' Price V. Maxwell, 28 Pa. 23. 

' Dexter v. Harvard College, 176 
Mass. 192; Sawyer v. Dearstynej 139 
N. Y. S. 955. 

* Rex V. Newman, 1 Lev. 284; Att.- 
Gen. V. Andrews, 3 Ves. 633; Case of 
Jesus Col., Duke, 78; Att-Gen. v. 
Bowyer, 3 Ves. 714. 

' Almy V. Jones, 17 R. I. 265; Hub- 
bard i). Worcester Art Museum, 194 
Mass. 280. 

8 People V. Cogswell, 113 Cal. 129. 

'Haynes v. Carr, 70 N. H. 463. 

'Att.-Gen. v. William and Mary's 
College, 1 Ves. Jr. 243. 

'»Att.-Gen. ». Wallace, 7 B. Mon. 
611; Burr v. Smith, 7 Vt. 241; Hinck- 
ley V. Thatcher, 139 Mass. 477. 

'"Bartlet i>. King, 12 Mtfss. 537; 
Fairbanks v. Lamson', 99 Mass. 533; 
Hitchcock V. Board of Missions, 269 
111. 288. Gould ». Board (Neb.), 167 
N. W. 776. 

" Att. -Gen. v. Stepney, 10 Ves. 22; 



Winslow V. Cummings, 3 Cush. 358; 
Bliss V. American Bible Soc, 2 Allen, 
334; Pickering v. Shotwell, 10 Pa. 23; 
Church V. Hinton, 92 Tenn. 188; Mc- 
Cormick Estate, 71 Misc. (N. Y.) 95. 

" Att.-Gen. v. Gladstone, 13 Sim. 7; 
Cory Universalist Soc. v. Beatty, 28 
N. J. Eq. 570; Pember «.. Inhabitants 
of Kingston, Toth. 34; Hood v. Dorer, 
107 Wis. 149; Staines v. Burton, IT 
Utah, 331. 

" See cases cited, supra, p. 212, 
notes; also McAlister v. Burgess, 161 
Mass. 269; Paine v. Forney, 128 
N. C. 237; St. Peter's Church i>. 
Brown> 21 R. I. 367. "For the sup- 
port of the church." Osgood v. 
Rogers, 186 Mass. 238. 

A fund of which the income is to 
be devoted to religious uses in con- 
nection with a parlictdar church, is 
a public charity. Sears v. Attorney- 
General, 193 Ma^s. 551. A devise to 
a church for the use affa benefit of 
such church is a good charitable de- 
vise. Biscoe ti. Thweatt, 74 Ark. 
645. See Dunne v. Byrne (1912), 
,A. C. 407. 



CH. v.] > TRUSTS ^OE CHARITIES. ' 217 

of churches," but bequests for religious and pious purposes 
have always been considered within the equity of the statute, 
and have always been upheld.^ It may also be mentioned, 
here, that in England gifts for superstitious uses, that is, re- 
ligious uses, which, according to the English ecclesiastical 
law, were illegal (as, for example, the maintenance of a priest 
to pray for the soul of the donor), were void. Trusts to say 
masses for the soul of a particular individual have been held 
not to be charitable uses.? In the United States there are 
no uses which can be denominated superstitious.' ^A trust, 
however, for an infidel society cannot be sustained.* 

123. Gifts for public purposes. 

4. Gifts for erecting or maintainiag public buildings or 
works, or otherwise lessening the burdens of government; ^ 
and under this head may be comprehended all trusts for the 
building or repair of bridges, ports, causeways, sea-banks, 
for paving, cleansing and lighting a town, for erecting 
town houses, laying out and maintaining public parks, for 
supporting military organizations, and bequests of a like 
character.* 

'Perry on Trusts, §701; In re 'Zeisweiss v. James, 63 Pa. 465- 

White, White v. White, [1893] 2 Ch. 471. 

-41. ' Jackson v. Phillips, 14 Allen, 556.^ 

''Festorazzi v. Church, 104 Ala. ' Coggeshallti.Pelton, 7 Johns. Ch.' 

327; Brannigan v. Murphy, (1896) 292; Bethlehem Borough v. Persever- 

1 Irr. R. 418; Rutherford v. Ott, 37 ance Fire Co., 81 Pa. 445; Mowry ». 

Cal. A. 47; contra: Webster v. City of Providence, 10 R. I. 52; State 

Sughrow, 69 N. H. 380; Coleman v. v. Griffith>2 Del. Ch. 392-421; Cres- 

O'Leary, 114 Ky. 388; In re Hamil- son's Appeal, 30 Pa. 437; Hamden v. 

ton, 181 Cal. 758; Wilmes v. Tiernay, Rice, 24 Conn. 350; Magill v. Brown, 

187 Iowa. 390; Morris v. Edwards, Brightly, 347; Peirce v. Attwill 

227 N. Y. 141; Kavanaugh's Estate, (Mass.), 125 N. E. 609; Haggin v. 

143 Wis. 90; Burke v. Burke, 259 111. Trust Co. (Colo.), 169 P. 138; In re 

270, especially if the bequest is to say Lord Stratheden and Campbell, [1894] 

masses pvblicly. Atty.-Gen. v. Hall 3 Ch. 265; Philadelphia v. Keystone 

(1896), 2 Irr. R. 291; or for the repose Battery A, 169 Pa. 526; Lackland v. 

of "all poor souls," Ackennan v. Walker, 151 Mo. 210; Stuart «. Eas- ' 

'^'"^.^^V^l? ^^u ^u o • . ton. 39 U. S. App. 238; Perry on 

1 4^f ^°ff r? TO'°'9'n,n^' Trusts, § 704; Thomas v. Ellmaker; 1 
IWatts, 218; Glass w.Wuhite, 2 Dana, _ ■,!, no tt ' w .. n i a 
175; Holland ... Alcock, 108 N. Y. ^>^f Eq. 98; Humane Firc Co 's Ap- 
312; Millerf. Porter, 53 Pa. 292; Har- Peal, 88 Pa. 389; Smiths Estate, 
rison v. Brophy, 69 Kan. 1; Jones v. Walker's Appeal, 181 Pa. 109; Beau- 
Watford, 64 N. J. Eq. 785. mont v. Oliveira, L. R. 4 Ch. 309. 



-218 TRUSTS FOB CHABITIES, [PART I. 

It may be remarked, here, that when the subject of the 
trust is not the result of a gift, but of a contract or a statute, 
the use will not be a charitable one, for charity is necessarily 
based upon the idea of bounty, and cannot be predicated of 
an agreement to devote money to a benevolent object,^ or 
of an assessment under a statute.^ 

Nor can a gift to a business enterprise be considered a 
charitable gift, nor will the donee, by its acceptance, be 
brought under the jurisdiction of Courts of Chancery over 
charities. Therefore, when Congress appropriated a large 
sum of money for the coinage of memorial half-dollars, which 
were to be given to the World's Columbian Exposition in 
aid of the cost, such appropriation did not bring the gift 
within the equity jurisdiction over charities.' 

124. Definition of a charitable use. 

From the above statement of the objects which have been 
considered charitable uses, it wUl be perceived that it is a 
task of no little difficulty to give a definition of a charitable 
use which shall be at the same time accin-ate and compre- 
hensive. 

Sir WilUam Grant ^ said that those piu-poses are considered 
charitable^ which are enumerated in the Statute of 43 EUz- 
abeth, or which, by analogy, are deemed within its spirit 
and intendment; but it has been justly remarked that this 
definition leaves something to be desired in point of certainty, 
and suggests no principle,* 

Mr. Binney, in his great argument in the Girard Will Case, 
defined a charitable or pious gift to be "whatever is given for 
the love of God, or for the love of your neighbor, in the Cath- 
olic and universal sense — given from these motives and to 
these ends— free from the stain or taint pf every considera- 
tion that is personal, private, or selfish." * A more concise 

' Brendle v. The German Reformed ' World's Columbian Exposition 
Cong., 33 Pa. 419; Swift v. The Bene- Case, 56 Fed. 654. 
ficial Society, 73 Pa. 362. * In Morioe v. Bishop of Durham, 9 

■■ Att.-Gen. V. Heelis, 2 Sim. «fe Stu. Ves. 405. 
77, per Sir J. Leach, V. C. ' Jackson v. Phillips, 14 Allen, 555. 

" Vidal V. Girard 's Ex'rs, 2, How. 128. 



CH. v.] TEUSTS FOR CHARITIES. 219 

and practical rule is that of Lord Camden, adopted by 
Chancellor Kent,. by Lord Lyndhurst, and by the Supreme 
Court of the United States — "a gift to a. general pubUc use, 
which extends to the poor as well as to the rich." ^ Mr. Jus- 
tice Grey, when on the Supreme Bench of Massaishusetts, iir 
the case of Jackson v. Phillips, defined a charity in its legal 
sense as a gift, to be applied consistently with existing laws, 
for the benefit of an indefinite number of persons, either by 
bringing their minds or their hearts imder the influence of 
education or religion, by relieving their bodies from disease, 
suffering, or constraint, by assisting them to establish them- 
selves in life, or by erectitjg or maintaining public buildings 
or works, or otherwise lessening the burdens of government. 
It is immaterial whether the purpose is called charitable in 
the gift itself, if it is so described as to show that it is chari- 
table in its nature.'' 

This last definition, while not perhaps as concise as could 
be desired, is nevertheless both clear and comprehensive, 
and has already been adopted in text-books as the most 
satisfactory definition of a charitable use; ' and it has lately 
been approved by the Supreme Court of Pennsylvania in 
The Fire Insurance Patrol v. Boyd, where the distinction 
between the motive and the purpose of the gift is pointed out 
and. the latter declared to be the true test.* 

126. Characteristics of a charitable use; uncertainty of the 
object. 
The nature of a charitable use having been explained, it 

•Jones V. Williams, Ambl. 652; • Perry on Trusts, § 697. 

Coggeshall v. Pelton, 7 Johns. Ch. * The Fire Ins. Patrol v. Boyd, 120 

294; Mitford v. Reynolds, 1 Phil. Ch. Pa. 624. This case repudiates the ap- 

191, 192; Perin «. Carey, 24 How. 506; proval of Mr. Binney^s definition 

Harrington v. Pier, 105 Wis. 485. which the court had expressed in 

' 14 AUen, 555; Newcomb v. Boston Price v. Maxwell, 28 Pa. 35. See, 

Protect. Dep't, 151 Mass. 215; Mis- also, Un. Pao. Ry. Co. v. Artist, 19 

souri Historical Soo. v. Academy of U. S. App.'613. Compare Newcomb 

Science, 94 Mo. 469; McDonald v. v. Boston Protect. Dep't, 151 Mass-. 

Shaw, 81 ArE. 235; Centennial and 215, and Kelly v. Nichols, 17 R. I. 

Memorial Assn. of Valley Forge, 235 306; 18 R. I. 62. 
Pa. 206 ; Thorp v. Lund, 227 Mass. 474. 



220 TRUSTS FOR CHARITIES. [PAKT I. 

will be proper now to point out the picincipal qharacteristics 
of this trust which have rendered it worthy of a separate 
consideration. These are, first, the uncertainty of its obj ects ; 
'and, secondly J the perpetuity "of its existence. 

It has already been pointed out that the chief character- 
istic of charitable uses was the fact that the objects of the 
trust were always, to a greater or less extent, uncertain; ^ 
and this characteristic of charitable uses has le(^ to a doc- 
trine peculiar to trusts of this sort, viz., that known as the 
cy pres doctrine. 

126. The cy pres doctrine. 

The qj pres doctrine has been much discussed, if not a 
little severely criticised, and in many cases misunderstoodr. 
The very clear statement of the law upon this subject by 
Mr. Justice Gray, in Jackson v. Phillips," has done much to 
establish an accurate understanding of^ the doctrine. 

The cy pres doctrine is one under which Courts of Chancery 
act-, when a gift for charitable uses cannot be appHed accord- 
ing to the exact intention of the donor. In such cases the 
courts win apply the gift, as nearly as possible (cy pres) in 
conformity with the presumed general intention of the 
donor; for it is an established maxim in the interpretation of 
wills, that a court is bound to carry the will into- effect if it 
can see a general intention consistent tidth the rules of law, 
even if the particular mode or manner pointed out by the 
testator cannot be followed.' Good illustra;tions of this 
doctrine will be foimd in the BaUol College case,* and in the 
Ironmongers' Case.^ 

127. Jackson v. Phillips. 

Another instructive example may be found in the case of 

'Supra, §116. «Att.-Gen. v. Guise, 2 Vem. 266; 

' 96 Mass. 539. Att.-Gen. v. Baliol CoU., 9 Mod. 407; 

' Jackson v. Phillips, 96 Masfe. 556; Att.-Gen. v. Glasgow Coll., 2 Collyer, 

Bartlet v. King, 12 Mass. 543; Inglis 665; 1 H. L. Gas. 800. 

V. Sailor's Snug Harbor, 3 Pet. 117, "Att.-Gen. v. Ironmongers' Co., 

118; Moggridge v. Thackwell, 7 Ves. Or. & Ph. 208. 
6B. 



tJH. v.] TRUSTS FOR CHARITIES. 221 

Jackson v, Phillips.' There, one of the trusts in the will was 
for "the preparation and circulation of books, newspapers, 
the delivery of speeches, lectures, and such other means as in 
their (the trustees), judgment will create a public sentiment 
that will put an end to negro slavery in this country," and 
for "the benefit of fugitive slaves who may escape from the 
slaveholding States." After the death of the testator, but 
while the litigation upon his will was in progress, the amend- 
ment to the Gonstitutioil of the United States abolishing 
slavery was adopted. The immediate purpose for which 
the bequest was designed having thus failed, the case was 
referred to a master to report a scheme, qj pres, for the ap- 
plication of the testator's bounty, and the fund was ulti- 
mately g,pplied to the New England Branch of the American 
Freedmen's Union Commission. 

128. Cy pres doctrine in England, prerogative and judicial. 

The above cases will serve to illustrate the cy pres doctrine 
in its general aspect. In England, however, this doctrine ap- 
peared in two distinct shapes. It was applied, in the first 
place, in the exercise of a royal prerogative, delegated to the 
chancellor jmder the sign manual of the crown; and, in the 
second place, by the chancellor in the exercise of his ordinary 
equitable jurisdiction. By virtue of the first or prerogative 
power, the chancellor assumed to direct a scheme for the ap- 
plication of a charitable bequest when the particular^ char- 
itable use designed by the testator was illegal, and therefore 
void, or when the gift was for an indefinite charitable pur- 
pose, and no trustees were named by the donor to carry it 
out.* Thus, where a sum of money was bequeathed to a 
Jews' synagogue, which bequest, according to the law of 
England, was illegal, it was applied to the.benefit of a found- 
ling hospital. And a bequest for the education of poor 
children in the Roman Catholic faith has been disposed of by 

1 96 Mass. 571. See, also, Minot v. Christjan Ass'n v. Kansas City, 147 
Baker, 147 Mass. 348; Att.-Gen. v. Mo. 103. 

BrjggB, 164 Mass. 561; Doyle v. ^'Moggridge v. Thackwell, 7 Ves. 
Whalen, 87 Me. 414, and Women's 83; In re Pyne, [19031 1 Ch. 83. See 

1 Am. Law Heg. (n. s.) 400, 401, 



222 TEUSTS FOR CHARITIES. [PART I. 

the king, under his sign manual.^ It is obvious that such an 
extravagant stretch of authority belongs to. the executive 
rather than to the judicial department of government; but 
from the circumstance that this power was in England ex- 
ercised by a judicial officer (the chancellor), it has come to be 
confounded with the purely judicial cy pres ddctrihe, and has 
necessarily tended to bring the latter into some disrepute.* 
The judicial cy pres doctrine is not, in fact, open to the same 
objections as the extraordinary assimaption of power just 
described, and'within proper/ limits seems to be a reasonable 
exercise of judicial discretion. The doctrine is this: Where 
a gift is made to a trustee for a charitable purpose, the gen- 
eral nature of which is pointed out, and which is lawful and 
yalid at the time of the death of the testator, and no inten- 
tion is expressed to limit it to a pa,rticular institution or mode 
of application; and afterwards, either by change of circum- 
stances the scheme of the testator becomes impracticable, 
or by change of law becomes illegal, the fund, having once 
vested in the charity, does not go to the heirs-at-law as a 
resulting trust, but js to be applied by the Court of Chancery, 
in the exercise of its jurisdiction in equity, as near the tes- 
tator's particular directions as possible, to carry out his 
general charitable intent.^ The doctrine as thus stated is 
well settled by the highest authority in England," and has 

> Story's Eq. Jurisp., § 1168. Jackson v. Phillips, 14 Allen, 574. 

• But that this power exists some- See, also, Johnson v. Johnson, 92 
where in all sovereignties, whether in Tenn. 519, where, however, the dis- 
the executive and legislative or in the tinction pointed out in the text does 
judicial branches, is apparent from not seem to be clearly explained, 
the decision in the Mormon Church ' Jackson v. Phillips, 14 Allen, 586. 
Case, 136 U. S. 1. The term, cy^ ^Att.-Qen. e. Guise, 2 Vern. 266; 
pres, has also been used to designate Att.-Gen. «. Baliol Coll., 9 Mod. 407; 
the rule of construction which has Att.-Gen. v. Glasgow Coll., 2 CoUyer, 
sometimes been applied to executory 665; 1 H. L. Cas. 800. See, also, 
devises or powers of appointment to Bloomfield v. Stowe-market, Duke on 
individuals,- in order to avoid the ob- Uses, 624; Att.-Gen. v. Hicks, 3 Bro. 
jection of remoteness. It was this Ch. 166, note; Att.-Gen. t». Craven, 
doctrine which has b'een condemned 21 Beav. 392; Moggridge w. Thack- 
by Lord Kenyon and Lord Eldon. well, 7 Ves. 36; Att.-Gen. v. Iron- 
See Brudenell t». Elwes, 1 East, 451; mongers' Co., 2 My. & K. 576; 2 
Sugden on Powers, rfiap. 9, §9; Beav. 313; Cr. & Ph. 208; 10 CI. 



^"^H. v.] TRUSTS FOR CHARITIES. 223 

received the sanction of decisions in this country, in which 
the subject has been most thoroughly and ably considered. 
In the Mormon Church Case Mr. Justice Bradley, of the. 
Supreme Court of the United States, summed up the result 
of the cases thus: "A leadin'g and prominent principle pre- 
vailing in them all is that property devoted to a charitable 
and worthy object, promotive of the" public good, shall be 
applied to the purposes of its dedication, and protected 
from spoliation and from diversion to other objects. Though 
devoted to a particular use, it is considered as given to the 
public, ,and is, therefore, taken under the guardianship of 
lihe laws. If it cannot be applied to the' particular use for 
which it was intended, either becS,use the objects to be sub- 
served have failed, or because they have become unlawful 
and repugnant to the pubUc policy of the state, it will be 
applied to some object of kindred character, so as to fulfil 
in substance, if not in manner and form, the purpose of its 
consecration." ^ It may be added -that this doctrine is ap- 
plicable to cases in which the residuary gift is to charity. 
In other words, when a particular bequest to charity fails, 
the subject oT the bequest will be applied as nearly as possible 
to that particular gift, and will not fall into a residuary 
legacy simply because that legacy also happens to be a chari- 
table gift. This rule was laid down in The Mayor of Lyons 
V. The Advocate General of Bengal,^ and the conclusioii 
reached, after a careful examination of the subject, was that 
the jurisdiction of the court to act upon the cypres doctrine, 
upon the failure of a specific charitable bequest, arises 
whether the residue be given to charity or not, unless upon 

& Fin. '908; Att.-Gen. v. Gibson, 2 S80, and City of Philadelphia v. 

Beav. 317; note; Biscoe «r Jackson, Girard's Heirs, 45 Pa. 28; Toner's 

36 Ch. D. 460; In re Slevin, [1891] Estate, 260 Pa. 54. To a charitable 

1 Ch. 373; In,re Wilson, Twentyman endowment for education coupled 

V. Simpson (1913), 1 Ch. 314. with a particular denominational re- 

'The Late Corporation of the ligion, education not coupled with 

Church df Jesus Christ of Latter Day religion, or coupled with religipn not 

Saints v. United States, 136 U. S. of that denomination, is not cy pres. 

51. The decree in this case will Att.-Gen. v. Price (1912), 1 CIi. 

be found in 140 U. S. 665. See, 667. 

also, Jackson v. Phillips, 96 Mass. ' L. R. 1 App. Gas. 91, 



224 TRUSTS FOR CHARITIES. [PART I. 

the construction of the will a direction can be implied that 
the bequest,. if it fails, should go to the residue.* 

129. Soundness of the latter doctrine. 

As already stated, this doctrine seems to be free from ob- 
jection; for it will be observed that thu^ stated it avoids both 
of the extravagant conclusions to which the prerogative cy 
pres doctrine led. The gift, if for a charity generally, must be 
made to trustees, thus avoiding the mischief of turning the 
court into a trustee for a general charity; '' while, on the 
other hand, there must be no intention to limit the gift to a 
particular institution or jnode of application, which avoids 
the obnoxious cy pres doctrine in those cases in which be- 
quests were made to particular charitable uses, but which 
were applied by the exercise of the prerogative to different 
objects, because the use designated was illegal. 

130. Rules of the different states. 

It is, nevertheless, true that the cy pres doctrine has in 
many cases in the United States been regarded with con- 
siderable disfavor. 

In Fontain v. Ravenel * the Supreme Court of the United 
States seemed to be opposed to the cy pres doctrine; but in 
Lorings' v. Marsh * and the Mormon Church Case * the doc- 
trine was approved. 

In North Carolina, Alabama, Delaware, Nebraska, Ten- 
nessee, and Wisconsin the cy pres doctrine has been repudi- 
ated.* In Pennsylvania, although the principles of the statute 

' Mayor of Lyons v. Advocate charitable object pointed out,' the 

General of bengal, L. R. 1 App. Cas. trust will not be suffered to fail for 

VI. See, also. Mills v. Farmer, 19 want of a trustee. McGirr v. Aaron, 

Ves. 486, and Ironmongers' Co. v. 1 Pa. 49. See Perr^ on Trusts, § 722. 

Att.-Gen., 10 CI. & F. 908. ' 68.U. S. 369. , 

^ "Where money is given to char- ■ < 73 U. S. 337. 

ity generally," said Lord Eldon in ? 136 U. S. 1. 

Moggridge v. Thaokwell, 7 Ves. 36, ' McAuley v. Wilson, 16 N. C. 276; 

"without trustees or objects selected, Banking Co. v. Ogburn (N. C), 107 

the king is constitutional trustee." S..E. 238; Keith v. Scales, 124 N. C. 

In othet words, the fund, in the ab- 497; Mayor v. Smith, 137 Ala. 386; 

sence of both trustees and definite University v. Caldwell, 203 Ala. 590; 

■ objects, was applied at the pure will Doughten v. Vandever, 5 Del. Ch. 51; 

of the crown. It must be remem- St. James Asylum v. Shelby, 60 Neb. 

bered, however, that where there is a 796; Harrington v. Pier, lOS Wis. 



CH. v.] 



TRUSTS FOR CHARITIES. 



225 



of Elizabeth were said to have been adopted, the cj/ i^es doc- 
trine was rejected; ^ but the doctrine to a limited extent was 
subsequently introduced by statute." In Maryland, Mich- 
igan, and Virginia neither the statute of Elizabeth nor its 
principles are in forge, and charities are treated as ordinary 
trusts; ' and the same conclusion has at last been reached 
in South Carolina, West Virgijiia, and Wisconsin; and in 
Minnesota, with cerfain exceptions.* 

But in many of the states, on the other hand, the cy pres 
doctrine has been received with more favor. In all of the 
New England states it has been either directly countenanced, 
or left an open question.^ In Missouri and Illinois the doc- 
trine has been* approved,* and in New Jersey with certain 
limitations.'' 

In Georgia, Connecticut and^ California the cy pres doc- 
trine has been adopted by legislation.* 



485; Johnson v. Johnson, 92 Tenn. 
559. 

• Witman v. Lex, 17 S.- & R. 88. 

2 Statutes of 1855, P. L. 331; and 
of 1895, P. L. 114; and see Jones v. 
Renshaw, 130 Pa. 333. The act of 
1885, however, narrowed the limits; 
P. L. 259. See, also, Zeisweiss v. 
James; 63 Pa. 465 (where Fontain^w. 
Ravenel is approved) and Philadel- 
phia V. Girard's Heirs, 45 Pa. 27. But 
it seems the doctrine now exists in all 
its fulnras. Abt of 1889, P. L. 173. 
See Lennig's Estate, 31 W. N. C. 234 
{per Penrose, J.); Toner's Estate, 
260 Pa. 55; McCully's Estate, 269 
Pa. 122. 

^ ' Dashiell v. Att.-Gen., 5 Har. & J. 
3"52; Provost of Dumfries v. Aber- 
crombie, 46 Md. 172; Halsey v. Con- 
vent P. ■©. .Church, 75 Md. 275; 
Trinity M. E. Church v. Baker, 91 
Md. 539; Hopkins v. Crossley, 132 
Mich. 612; Gallego v. Att.-Gen., 30 
Va. 450; Jordan v. Trustees, 107 
Va. 85," Mars v. Gibert, 93 S. C. 455. 
See, also, Beekman v. Bonsor, 23 
N. Y. 308; Fosdick v. Hempstead, 

15 



125 N. Y. 581; Mong v. Roush, 29 
W. Va. 119; In re Hoffen's Est., 70 
Wis. h22. ' (See, however, as to this 
last case, Harrington v. Pier, 105 - 
Wis. 485, and Hood v. Dorer, 107 
Wis. 149); Shanahan v. Kelly, 88 
Minn. 202; Watkins ». Bigelow, 93 
Minn. 210. 

5 Bun>«. Smith, 7 Vt. 287; Brown 
V. Concord, 33 N. H. 296; Jackson 
V. Phillips, 14 Allen, 570; Derby v: 
Derby, 4 R. I. 439; Howard v. Amer- 
ican Peace Soc, 49 Me. 302; Darcy 
V. Kelly, 153 Mass. 433; Richardson 
V. Mullery, 200 Mass. 247. 

" Academy v-. Clemens, 50 Md. 167. 
See, however, Hadley v. Farsee, 203 
Mo. 418; Gihnan v. Hamilton, 16 111. 
231; Hunt v. Fowler, 121 IlL 269; 
Laswell ;;. Hungate, 256 Fed. 638. 

' MacKenzie v. Trustees, 67 N. J. 
Eq. 675; Brown «. Condit, 70 N. J. 
Eq. 440; Nichols v. Newark Hospital, 
71 N. J. Eq. 130; St. James Church 
V. Wilson, 82 N. J. Eq. 546. 

« Georgia Code, §4605; Ford v. 
Thomas, 111 Ga. 493; Connecticut 
Rev. Stats:, § 1034, iii cases of 



226 TRUSTS FOR CHARITIES. [PART I. 

, In a recent New York case it has been held that the law 
of charitable trusts as recognized in England prior to the 
revolution has been restored in that state by statute.^ 

There seems, indeed, to be no valid reason why'lihe judicial. 
cy pres doctrine, as explained in Jackson v. Phillips, should 
not be approved in all those states wherein the statute of 
Elizabeth has been decided to be in force, or where its prin- 
ciples have been adopted by the law of the state; in other 
words, in those states where the doctrine tliat indefiniteness 
of the object is no objection to a trust, provided it is for a 
charity, is recognized. This is the case in many of the states 
of the Union.'' 

131. Nature of the uncertainty which should avoid a chari- 
table gift. 
While, however, the reasonable cy pres doctrine may be 
sustained, it is, nevertheless, true that many bequests for 
charitable purposes are, even in England, considered void 
by reason of uncertaiaty ; ^ although it is submitted that when 

trusts created by deed. Woodrufif v. Mayne, 4 la. 180; Miller v. Chitte'n- 

Marsh, 63 Conn. 125; Civil Code of den, 4 la. 252; Preacher's Aid Soc. v. 

California, § 1317; In re Royer, 123 Jlioh, 45 Mfe. 552; Trustees v. Cham- 

Cal. 614. bers, 3 Jon. Eq: 253; St. Peter's 

' Trustees v. Carmody, 211 N. Y. Church v. Brown, 21 R. I. 367; 

286; Allen v. Stevens, 161 N. Y. Walker w. Walker, 25 Ga. 420; Chiu-ch 

122; Camp v. Society, 173 N. Y. S. v. Church, 18 B. Mon. 635 (see Rev. 

581. - Stats, of Kentucky, 1860,-c: 1, §1); 

" See Vidal v. Girard's Ex'rs, 2 Chambers v. St. Louis, 29 Mo. 543; 

How. 128; Perin v. Carey, 24 How. Paschal u. AckUn, 27 Tex. 173; Glad- 

465; Hadley v. Hopkins Academy, 14 ding v. Church, 25 R. I. 628; Fay v. 

Pick. 240; Going v. Emery, 16 Pick. Howe, 136 Cal. 599; Grant v. Saun- 

107; Treat's Appeal, 30 Conn. 113; ders, 121 Iowa, 80; Jansen v. Godair, 

Witman v. Lex, 17 S."* R. 88; 292 lU. 364; Smith o. Pond, (N. X), 

Williams v. Pearson, 38 Ala. 305; 107 A. 800; Toner's Estate, 260 

McCord «. Qchiltree, 8 Bkckf. Pa. 49. 

15; Beall v. Fox, 4 Ga. 404; Wade ' Or because it is impossible to com- 

V. Am. Col. Soc, 7 S. & M. 663; pel the trustees to execute the gift, 

Dickson v. Montgomery, 1 Swan and it is out of the question, without 
(Tenn.), 348; Unney's Ex'rs v. , such concurrence, to execute such 

Wooden, 1 Ohio St. 160; Johnson v. gift at all. New v. Bonaker, L. R. 4 



CH. v.] TRUSTS FOR CHARITIES. 227 

properly considered, the imcertainty which avoids the gift 
is not so much a vagueness in the charitable purpose, as an 
uncertainty whether the trustees are bound to apply the 
gift in charity at all.^ Thus, in Ellis v. Selby,^ the gift was 
to trustees "to pay and apply the fund * * * to and for such 
charitable or other piirposes as, they * * * shall think fit;" 
and it was held that the gift was void, because, from the 
alternative nature of the bequest, it was not incumbent upon 
the trustees to apply the fund to charitable uses only. The 
same rule was applied in a case in the House of Lords, where 
a gift by will, for "such charitable or public purposes as my 
trustee thinks proper" was held voi4 for the same reason.' 
And although in several other cases in which, this rule has 
been applied, the alternative nature of the gift has not been 
so apparent,^ yet it is conceived that the true test to be ap- 
plied is that suggested by Sir William Grant, in Morice v. 
The Bishop of Durham, viz., whether the property can con- 
sistently witfi the will be applied to other than charitable 
purposes; if it can, the trust is too indefinite. ° Such was the 
test recognized in Michigan, in The Attorney-General v. 
Soule,' where the rule laid down b^ Sir William Grant was 
expressly followed. , 
But if the general charitable nature of the trust is impera- 

Eq! 655. See Fowler v. Attorney- [1906] 2 Ch. 184; In re Davidson, 

General (1909), 2 Ch. 1; Weir v. [1909] 1 Ch. 567; Dick v. Andsley, 

Crum-Brown (1908), A. C. 162. [1908] A. C. 347. 

> Welch V. Caldwell, 226 111. * Williams v. Kershaw, 5 CI. & Fin. 

488. Ill; Morice v. The Bishop of. Dur- 

2 7 Sim. 352; 1 M. & Cr. 286; Thom- ham, 9 Ves. 404; Thomson's Ex'rs v. 
son V. Shakespeare, 1 Johns. Ch. Norris, 20 N. J. Eq. 489; Coleman v. 
(Eng.) 612; In re Macduff, Mao- O'Leary's Ex'r, 114Ky.388;Thomp- 
duff V. Macduff, [1896] 2 Ch. 461. son v. Brown, 116 Ky. 102. 

See, however, Dolanw. McDermot, '9 Ves. 404. See, also, Rotch v. 

3 Ch. App. 676. Emerson, 105 Mass. 431; Tilden v. , 

3 Blair "ti. Duncan, [1902] A. C. Green, 130 N.Y. 29; Darcyw.Kelley, 
p. 37. See, also. Hunter v. Attor- 153 Mass. 433, 

/ney-General, [1899] A. C. 309. See, « 28 Mich. 153-156. See, also, 
ho^^ ever^ McLaughlin v. Att.-Gen., Johnson v. Johnson, 92 Tenn, 559. 



228; TRUSTS FOl^ CHABITIES. [PART I. 

tive, and a trustee has been appointed, the better opinion 
would seem to be that such a trust will be carried out by the 
cburt in spite of the vagueness or uncertainty in the gift.^ 
A different rule, however, was laid down in New York. The 
subject in hand was examined by the Court of Appeals^ of 
that state, in 1891, in construing the will of Samu^ J. Tilden, 
and the conclusion reached was thus expressed: "As the 
selection of the objects of the trust was delegated abso- 
lutely to the trustees, there is no person or corporation who 
could deinaiid any part of the estate or maintain an action 
to, compel the trustees to execute the power in their favor. 
This is the fatal defect in the will. The will of the trustees 
is made controlling and not the will of the testg,tor." ^ It 
niiust be remembered, however, that it was decided in Fon- 
tain ?;. Ravenel,' that wheil a discretion as to the application 
of the fiind'to charitable purposes had been vested in execu- 
tors, and-tho^e executors died during the pendency of a prior 
life-estate; the court would not exercise the discretion, and 
the gift would fail. And this rule seems to be approved in 
Pennsylvania.* 

iSaltonstall o. Sanders, 11 , Allen, Powers, 147 N. Y. 104. See, in this 

462; MoLain v. School Directors, 51 connection, Allen ». Stevens, 161 

Pa. 199; Appeal of Children's Hospi- N. Y. 122, and Keith v. Scales, 124 

tal, low. N.C. 313; Kinike's Estate, N. C. 497. In this last case the dif- 

155 Pa. 101; Atwater v. Russell, 49 ference between the Tilden Will Case 

Minn. 57; Sappington v. School Fund and Vidal v. Girard's Ex'rs, is pointed 

Trustees, 123 Mo. 32; Hadden ti. out. "No gift, grant, or bequest 

Dandy, 51 N., J.. Eq. 154; St. James etc. * * *' shall be deemed invalid by ^ 

Orphan Asylum v.. Shelby, 60 Neb. reason of the indefiniteness or un- 

796; In.re Stewart's Estate, 26 Wash, certainty of the persons designated 

32; Perry on Trusts, § 712. See, how- as the beneficiaries thereunder." 

ever, Holland v. Alcocjc, 108 N. Y. N. Y. Laws, 1893, chap. 701, § 1. 

312; Tilden v. >Green, 130 N. Y. 29, (Consol. Laws, Ch. 41, Laws of 1909, 

and Murphy's Estate, 184 Pa. 310; §12, subd. 1.) Devise to town in 

Godfrey v. Hutchins, 28 R. I. 517; Massachusetts in trust, the income 

Selleck v. Thompson, 28 R. I. 350; to be used for the benefit of the poor 

Succession of Thompson, 123 lia. of said town is valid. Matter of 

948. Rasquin, 159 App. Div. (N. Y.) 845; 

' Tilden v. Green, 130 N. Y. 29. A See Buell v. Gardner, 83 Misc. (N. Y.) 

similar ruling had been made a few 613. 

years previously in Holland v. Alcook, » 58 U. S. 369. 

108 N. Y. 312. See, also, Gambell v. * Zeisweiss v. James, 63 Pa. 

Trippe, 75 Md. 252, and People i». 465; DuUes's Estate, 218 P-i. 



CH. v.] TBUSTS FOR CHARITIES. 229 

In Sherman v. Congregational Missionary Society ^ there 
was a gift to "W. C. T. TJ." (which initials were conceded to 
mean Womg,n's Christian Temperance Union) or R6st Home 
in, Chicopee Street. It was held that as there was a clear 
intent to devote the fund to, charity, the gift should be di-. 
vided between the^^two institutions. But as to this decision 
it may be remarked that the uncertainty of particular bener 
ficiaries in g, given class will; not, according to what (it is 
conceived) is the true doctrine, render the gift void; but 
that an uncertainty as to which of two classes of beneficiaries 
the gift is to be applied would appear to be open to the s^me 
argument against its validity because of uncertainty as a 
bequest to either of two individuals {say) A or B. 

132. Resulting trusts in cases of charitable gifts. 

It sometimes happens that the particular charitable pur- 
poses specified or supposed to be contemplated by the testa- 
tor do not exhaust the whole of the income p'f the property 
devoted by the will to charity. The general rule may be 
stated to be that if an intention can be gathered from the 
will to devote the whole to charity, the circumstance that 
the specific appropriation covers only a certain part, or that 
the estate afterwards becomes of a value more than sufficient 
to satisfy the requirements of the gift, will not create a re^ 
suiting trust pro tanto for the heir or the next of kin, but that 
the surplus also will be devoted to the charitable purpose. 
This doctrine has existed siuce the time of Lord Coke, and 
is generally referred to as the rule- in the Thetford School 
Case.^ In that case the testator, having land let at a rent 
of £35 a year bequeathed a' sum of £35 a year "to ihe 
charitable uses hereinafter mentioned, that is to say," 
and then he said to the school-master so much, to the usher 
so much, pnoportions of the whole. In the process of time, 
the reiats increased to a greater yearly value than' £35, 
and it was decided that the surplus also was to be appro- 

162; Kimberly's Estate, 249 '^ Pa. real estate 'in the same will, would 
469. ■ seem to be gdvemed by other rules. 

1 176 Mass. 349. The gift of the =8 Rep. 130, b. 



230 TRUSTS FOR CHARITIES. [PART I. 

priated to the charity.* However, if the testator, by 
the terms of the bequest takes notice of the fact that the 
payments are less than the amount of the rents, there will 
be either a resulting trust, or the surplus will belong to the 
person to whom the estate is ^ven, and by whom the pay- 
ments are to be made.'' 

In this class of cases, however, it is difficult, and perhaps 
impossible, to lay down any general rule. The decision in 
each case must depend upon the instrument to be construed 
and the facts.^ 

133. Perpetuities and accumulations. 

Another characteristic of a charitable use which demands 
attention is that it is not subject to the ordinary rules in re- 
gard to' perpetuities. Ordinarily, a perpetuity will no more 
be tolferated when it is covered with a trust than when it 
displays itself undisguised in a settlement of the legal estate,* 
and therefore a perpetual trust cannot be created for an in- 
dividual and his-heirs in succession, forever.^ But when the 
trust is for a charity, it is no objection to it that the property 
may remain in the hands of the trustees and their successors 
for all time.* Indeed, it is often one of the main objects of a . 
gift to charity that the charitable use of the property should 
be perpetual; and, moreover, it must be remembered that, 

' See, also, Mayor of Beverly v. * 1 Lewin on Trusts (12th Ed.), 

Att.-Gen., 6 H. L. Cas. 318; Att.- 108; Duke of Norfolk's Case, 3 Ch. 

Gen. V. Dean of Windsor, 8 H. L. Cas. 20;_ Perry on Trusts, §33. 

Cas. 369; Girard v. Philadelphia, 7 'Thellusson v. Woodford, 4 Ves. 

WaU. 1; Att.-Gen. v. Wax Chand- 227; 11 Ves. 112. 

lers' Co., L. R. 8 Eq. 452; 2 Redfield « Perin v. Carey, 24 How. 495; 

on Wills, 796; Matter of Arfowsmith, Bauer v. Myers, 244 Fed. 909; 

162 App. Div. (^f. Y.) 623; HamU- Jones v Watford, 62 N. J. Eq. 339; 

ton's Estate, 47 Pa. Sup. 428; Yard's Appeal, 64 Pa. 9; Andrews v. 

Eliot V. Attwill' (Mass.), 122 N. E. Andrews, 110 111. 223; Staines v. 

648. Burton, 17 Utah, 331; Asylum v. 

^ Mayor of Beverly v. Att.-Gen., 6 Lefebre, 69 N. H.~ 238. See In re 

H. L'. Cas. 310; Hill on Trustees, Dean, 41 Ch. D. 552, where the gift 

129. was to take care of certain horses, 

• Perry on Trusts, § 725. - ponies and hounds for their lives. 



CH. v.] TRTTST8 FOR CHARITIES. 231 

from this devotion to charitable uses, it does not necessarily 
follow that the property is never to be alienated, for the coiirt 
can decree the sale of any trust property when the exigency 
of the case arises. ^ In Maryland, however, it is held that 
the rule against perpetuities applies to trusts for charitable 
or religious uses, as well as to- a trust for any other purpose j-* 
and in New York, also, trusts for charities, under the peculiar 
law of that" state, have been held to be subject to the rules 
against perpetuities in the same way as ordinary trusts. ' But 
in a later New York case the court held that under the Act 
of 1893, trusts for charities are not so subject.* 

The. rule against perpetuities^ however, does apply to a 
grant or devise to a charity after one to a private person,* as 
well as to a grant or devise to a private person, although 
limited over after an immediate gift to a charity. But where 
there is no limitation over, and the charitable gift fails, the 
rule will not prevent the heir from taking by a resulting 
trust. ^ 

In general, trusts for accumulation beyond the period 
allowed by the common law, i. e., a Ijfe or lives in being and 
twenty-one years afterwards, are void;^ but in the case of 
trusts for charities, where there are no statutory regulations 
upon the subject trusts for accumulation beyond the cbm- 
, mon-law period are allowed.* 

' Perry on TrustB, § 737; Id., § 24, Booth v. Baptist Church, 126 N. Y", 

and cases cited in note; Brown v. 215. 

Meeting St. Bapt. Soc, 9 R. I. 177; ' Allen v. Stevens, 161 N. Y. 122 

Ban- V. Weld, 24 Pa. 84; SeUers ' Penrose s Estate 257 Pa. 231. 

Chifrch's Petition, 139 Pa. 67; Mills 355^°^'^'''' "" «™«1»^^' ^^^ U. S. 

V. Davison, 54 N, J. Eq. 659 (a case , '^^^ ^^ rj,^^^^ ^^ 393_ 394 

of restraint on aUenation), and Asy- s gee Odell v. Odell, 10 Allen, 1; St. 

lum V. Lefebre, 69 N. H. 238, a case Paul's Ch. v. Att.-Gen., 164 Mass. 

of like restraint. See, also. Lackland igg; Woodruff v. March, 63 Conn. 

B. Walker, 151 Mo. 210, and Women's 125; Crerar v. Williams, 145 111. 625; 

Chris. Ass'n v. Kansas City,.147 Mo. City of -Philadelphia v. Gu'ard's 

103. ■ Heirs, 45 Pa.. 9. This last case is 

2 Missionary Society 0. Hum- distinguished from the case of HiU- 

phreys, 91 Md. 131. yard v. MiUer, 10. Pa. 326; Perry on 

' Levy V. Levy, 33 N. Y. 97; Bas- Trusts, § 738; Codman v. Brigham, 

com V. Albertson, 34 N. Y. 584; 187 Mass. 309. Where the aocumu- 

Tilden_ v. Green, 130 N. Y. 29; lation is a condition precedent to the 



232 TRITSTS FOR CHABITI3S8. [PAHT' I. 

. If, however, the charitable trust is not to vest until after 
the determination of a prior gift, and that prior gift may by 
possibility last longer than the time allowed by law, the gift 
over to charity will be void, because of the perpetiiity in the 
first taker. ^ Of course, this rule would not apply when the 
first gift is to a charity.^ " / 

134. Statutes of mortmain. 

In England a conveyance or devise of real estate in trust 
for a charitable or public institution, being a corporation, is 
inoperative by the statute of mortmain unless sanctioned 
by a license from the crown.' These statutes, howeyer, are 
not in force and have not been adopted in the United States, 
and the English decisions upon this subject are therefore of 
no importance in this country.* 

vesting of the gift in charity and the 415; Potter i>. Thornton, 7 R: I. 252, 

period of accumulation transgresses Perry on Trusts, § 736; Storrs Agr. 

the rule against remoteness, the gift School v. Whitney, 54 Conn. 342; 

'is void ab initio. Girard Trust Co. Ahny v. Jones, 17 R. I. 265. 

V. Russell, 179 Fed. 446; 171 Fed. » Hill on Trustees, 455. 

161. ■> 2 Kent's Com. 282. In Pennsyl- 

' Hillyard v. Miller, 10 Pa. 335; vania the statutes of mortmain were 

City of Philadelphia v. Girard's Heirs, reported to be in forcejsy the judges; 

45 Pa. 29; Perry on Trusts, § 736. see 3 Binney, App. 626; but a con- 

* Lennig's Estate, 154 Pa. 209; trary opinion has been subsequently 

Christ's Hospital v. Grainger, 16 expressed. Magill v. Brown, Brightly 

Sim. 83; 1 MacN. & G. 460; Mo- 350; Vidal v. Girard's Ex'rs, 2 How. 

Donogh's Ex'rs v. Murdoch, 15 How. 128. 



CHAPTER VI 



trusiIees; their powers and duties. 



135. Jurisdiction of Courts of Equity 

over trustees. 

136. Who may be a trustee; corporar 

tions. 

137. Acceptance of the trust. 

138. Generad duties of trustees. 

139. Conversion of securities; de- 

posits. 

140. Investments by trustees; Eng- 

lish rule. 

141. Rules in the United States. 

142. When trustees are chargeable' 

with interest. 



143. Trustee cannot use his position 

for his own advantage. 

144. Compensation of trustees; dif- 

ference between English rule 
and that in most of the United 
States. 
145 < Trustee cannot delegate his au- 
' thority. 

146. Responsibility for acts of co- 

trustee.' 

147. Remedies for breach of trust. 

148. Trustees' Accounts.' 



136. Jtirisdiction of Courts of Equity over trustees., 

The general nature of a trust having been explained, and 
the different modes in which the relationship "of trustee and 
cestui que trust may arise having been pointed out,, it.will be 
proper now to proceed to a brief consideration of some of the 
rules by which the conduct of the holder of the legal title is 
governed, and by which his relations with co-trusteeS, with 
strangers, and with the cestui que trust are regulated, The 
promulgation and enforcement of these rules fall necessarily 
and properly within the jurisdiction of courts of equity, for 
it is but reasonable that those courts, after having called the 
equitable title into existence, should continue to exercise 
over it a constant care and -supervision.^ Equity affords this 
protection by appbinting and removing trustees, by super- 
intending their discharge of the duties of the trust, by re- 
gulating their Uability, by filling a vacancy or vacancies in 
the office of trustee, and, finally, by affording the trustees, 

» See Dorsey i>. Garey, 30 Md. 489, 495. 

233 



234 TBUSTEBS; THEIR POWERS AND DUTIES. [PABT I. 

upon a proper application and upon proper cause shown, the 
advice and assistance of the court. 

Moreover, if a trustee wishes to be relieved of the duties 
of his office, he must, as a general rule, apply to a c6urt of 
equity to be discharged. He cannot discharge himself of his 
trust without the assent of the cestui que trust or the direction 
of a Court of Chancery.* 

The manner in which courts of equity interfere for these 
purposes depends, at the present day, very much uplon stat- 
utory regulations ;, and the liabilities and duties of trustees 
are also, in very many instances, governed by statutes, the 
details of which in the different states, and in England, it 
would be quite impossible, in a treatise like the present, to 
explain. Nor is it possible "to enter into a discussionof all the 
different duties which tf ustees are called upon to discharge, 
for they necessarily vary with the varied purposes for which 
trusts are created. They have been most elaborately'^ex- 
amined in modern ^times in works devoted expressly to the 
subject. It is desirable, however, before leaving the con- 
sideration , of the subject of trusts, that some of the more 
general questions connected with the jurisdiction of chancery 
over trustees should be noticed. 

136. Who-may be a trustee; corporations. 

Any reasonable being may be a trustee; ^ and a corpora- 
tion, though it has but an artificial existence, may be a 
trustee for purposes germane to the objects of its corporate 

•Shepherd o. McEvers, 4 Johns. (12th Eng. ed.), 37. WTule a cestui 

Ch. 136; Damon v. Hyde, 11 Hawaii, que trust may be invested with the 

153; Jn re Kellogg, 214 N. Y. 460. powers of and permitted or required 

* Infants, married women, and to act as a trustee yet his interest as 

bankrupts may be trustees. See cestui que trust, especially when it is 

Perry, §§ 48 et seq; Hlawaty v. Zoeck, for life only, being at variance with 

253 Pa. 311; Cuiran v. Green 18 ^jg ^uty as trustee, courts will not 

R I. 329. "But It does not follow ^^p^-^ construction of a will in- 

that whoever is capable of taking m. ,. , /!•.,.. 

trust is capable of performing or ;^°l^f « such conflict of mterest un- 

executing it. The inquiry, then, is ^^f *^e testators mtent to accom- 

not so much who may take in trust P^^h such result is clear. Vreeland's 

as it is who may execute and perform Est., 66 N. J. Eq. 297; Doan v. 

a trust." Perry, § 39; In re Tern- Vestry, 103 Md, 662; Fox's Estate, 

pest, L. R. 1 Ch. 487. See Lewin 264»Pa. 478. 



CH, VI.] trustees; their powers and duties. 



235 



life.^ The United States, and each one^of the separate states, 
may sustain the character of trustees.'' Theionly difficulty 
in such cases is the same as that which existed in England 
when the king was trustee, viz., in enforcing a decree of a 
court against the sovereign power.' Gifts to unincorporated 
societies in trust for charitable purposes have been sustained 
in equity, although the decisions on this point tave not been 
uniform.* If a valid trust has been created, and no trustee 
has been appointed, or a trustee has been appointed who is 
iiiaompetent to act, equity will appoint a trustee; for it is a 
cardinal maxim in Courts of Chancery upon this subject 
4;hat a trust shall never tse suffered to fail for want of a 
trustee.* Thus, if a corporation should be designated as a 
trustee, and the objects of the trust should be such that the 
corporation, from its very nature, would be incapable of 



• Vidal V. Girard's Ex'rs, 2 How. 
488, 190; Girard v. Philadelphia, 7 
Wall. 1; McDonough's Ex'rs v, Mur- 
doch, 15 How. 367; Philadelphia v. 
Fox, 64 Pa. 169; Mayor of Phila. v. 
Elliott, 3 Rawle, 170; Cresson's Ap- 
peal, 30 Pa. 447; Commissioners" w. 
Walker, fr How. (Miss.) 184"". In 
this connection reference may be 
va^de to the case of Franklin's Es- , 
tate, 150 Pa. 437. But the soundness 
of this decision may be doubted. 
Incapacity to act as a trustee under 
an express trust would not seem to 
relieve the holder of a legal title 
■ from the duty of conveying it to the 
equitable owner; and this is all that 
a trustee under- a resulting or con- 
structive trust would be required to 
do. See, as relevant to this point, 
Fra^ier v. St. Luke's Ch., 147 Pa. 
256; Clayton v. Hallett, 30 Colo. 
231. -^ 

' McDonough's Ex'rs v. Murdoch, 
15 How. 367; Case of the Smith- 
sonian Institution, cited in Whicker 
V. Hume, 7 H. L. Cas. 141; U. S. 
Stats., vol. V, p. 64, IX., p. 102; 
Mitford V. Reynolds, 1 Phil. 185; 
Nightingale v. Goulbuom, 2 Phil. 



594; 5 Hare, 484; Conley v. D. R., 
106 Tex.'80. It was'deemed that the 
United States could be trustee in 
Levy V. Levy, 33 ~N. Y. 97; Shoe- 
maker V. Com'rs, ?6 Ind. 176. 

' See New v. Bonaker, L. R. 4 Eq, 
655; Hill on Trustees, 50; Perry on 
Trusts, §§40, 41. Ante, §52. 

* Vidal V. Girard's Ex'rs, 2 How. 
127; Burbank v. Whitney, 24 Pick. 
146; Magill v. Brown, Brightly, 350; 
Pickering v. Shotwell, 10 Pa. 27; 
Cone 0. Cone, 61 S. C. 512; though 
see Baptist Assoc, v. Hart's Ex'rs, 4 
Wheat. 1; Weaver w. Spurr, 56 W. Va. 
95, and St. Peter's Church «). Brown, 
21 R.jl. 367; Perry on Trusts, § 46; 
Guild W.Allen, 28 R.L 435. 

« Perry on Trusts, § 38; Woodruff 
V. Woodruff, 44 N. J. Eq. 349; Skin- 
ner V. Harrison Twp., 116 Ind. 139; 
Childs V. Waite, 102 Me.' 451'; Culver 
V. Bank, 22 Cal. App. 379; Roberta 
V. Roberts, 259 111. 122; Dean ». 
Trust Co., 259 111. 155; In re Walden, 
190 Iowa, 567; In re Johnson (Or.), 
196 P. 385; Brock v. Conkwright, 179 
Ky. 555; Trust Co. v. Chappell, 
(R. I.) 101 A. 323; Toner's Estate, 
260 Pa. 65. 



236 trustees; their powers and duties, [part li 

carrying them out, a Court of Chancery will appoint a 
trustee who will be able to discharge the duties of the trust.* 

137. Acceptance of the trust. 

In cases of express trusts it is necessary that the trust 
should be accepted by the trustee, either expressly or im- 
pliedly; and whether there has been such an acceptance is 
a question of fact of a kind proper for the determination of 
a jury.^ The best and most effectual method of accepting 
a trust is by signing the trust deed; but an acceptance may 
be equally inferred from any acts of the trustee in and about 
the execution of the trust. ^ If it is desired not to accept the 
trust, great care should be exercised not to do any act which 
might- be construed into an acceptance. Even an instru- 
ment, drawn for the purpose of disclaiming a trust, has been 
construed to be an acceptance of it, because it was in the' 
form of a conveyance, which was a dealing with the trust 
estate.* 

If an effectual disclaimer is made, the legal estate will not 
v(3st in the intended trustee.^ 

138. General duties of trustees. 

The duties of trustees may be said in general terms to be 
embraced in the obligation to protect and preserve the trust' 
property, and to see that it is employed solely for the benefit 
of the cestui que trust. Thus, trustees for the payment of 
debts should take care that all the assets are properly got 
in, that as much as possible is realized from them, that credi- 
tors are ascertained, their claims investigatied, and the funds 
properly aipplied in the due pajonent of their demands.* 
Trustees for sale are to see that a sale takes place within a 

'Vidal t>. Girard's Ex'rs, 2 How. 'Perry on Trusts, §260. See 

188; Sonley w. . Clockmakers' Co., 1 Salter w. Salter, 80 Ga. 178. 

Bro. Gh. 81; Mormon Church Case, * Crewe v. Dicken, 4 Ves. 97; Urch 

136 U. S. 1; Matter of Griffin, 167 v. Walker, 3 M. & C. 702; Perry on 

N. Y. 71; Perry on Trusts, §46; Trusts, § 271. 

Boston ti. Doyle, 184 Mass. 373. ' Jn re Biroh9,ll, 40 Ch. D. 436. 

* Armstrong v. Morrill, 14 Wall. » Chambersburg Savings Fund Ab' 

139. sociation's Appeal, 7^ Pa. 293. 



« 



CH. VI.] trustees; theik powers and duties. 237 

reasonable time,^ that the property is disposed of on the 
most advantageous terms, that all means are used for the 
purpose. of obtaining buyei-s and securing a fair sale, and 
that the purchase-money is collected. Trustees for charities 
must take care that the income is applied to the charitable 
purposes to which it was directed by the instrument creating 
the trust, and none other, and that the wishes of the donor 
are carried out consistently with the rules of law. In fine, 
it .would be impossible to enumerate the duties which the 
multifarious purposes for which trusts are created impose 
upon thelirustees — for to do so would be to write a wqrk not- 
upon the general principles of equity, but upon trusts. 

Speaking very generally, in passing upon the subject of 
the proper discharge of his duties by a trustee, it has been 
said that the true question is whether, considering all the 
circumstances, he has displayed such prudence and diligence 
in conducting the affairs of the trust as men of average pru- 
dence and discretion would employ in their own affairs.^ 
Perhaps the truer rule would be that a trustee must exercise 
such prudence and diligence as a careful business itian would 
display in 'investing, not his own money, but the money of 
others. The fact that the money does not belong to the 
investor must always be an element to be considered by the 
trustee. The rules of prudence in the two cases differ. In 
the case of his own money, a man may take a risk which the 
rules of prudence would justify. Where the money of another 
is at stake, the rule of prudence may forbid the risk.* 

139. Conversion of securities; deposits. 

The first general, duty of trustees is to take possession' of ■ 
the trust property, to call in debts, ^ and to convert such 

' See Walker v. Shore, 19 Ves. 387; the remarks of Dean, J., on pp. 485- 

Hunt ». Bass, 2 Dev. Eq. 297; Morris 486. 
V. Morris, 4 Jur. (n. s.) 802-964. < See In re Brogden, 38 Ch. D. 546, 

'Purdy V. Lynch, 145 N. Y. 462. where a. trustee under a marriage 

See, also, Ba;rtol's Estate, 182 Pa. settlement .was held responsible' for 

410, and Nagle v. Robins, .9 Wyb- /failure to make diligent efforts to 

Biing, 211. collect the sum of ten thousand. 

' Hart's Estate, 203 Pa., 480, and pounds covenanted to ^be paid by 



238 trustees; their ppwERS and duties, [part i. 

securities as are not legal investments.* In converting se- 
curities they must exercise a sound discretion to sell in the 
most advantageous manner and at the most advantageous 
time." They ought not to suffer trust property to remain in 
securities not authorized by law, unless there is something 
in the instrument creatiilg the trust to justify such a course.' 
As personal securities are not recognized by law as a proper 
investment, an executor should not allow the assets to re- 
main outstanding in such securities, although the loan or 
investment had been made by the testator himself.^ Of 
course, there is no duty to convert securities, if by the terms 
of the trust instrument there is a sufficient indication that 
the cestui que trust was intended to ehjoy the interest, income, 
or dividends of the specific securities.* 

After securities have been converted, the funds should be 
deik»sited in a proper place. 

A trustee will not be liable for the failiire of a bank in 
which trust funds have. been deposited, if he has suffered 
them to remain there only for' a reasonable time; ^ but if he 
allows them to lie there by way of investment, he will be 

the settlor withiu five years after his encumbered," the trustee has no 

death. power to pledge a mortgage belong- 

' See In re Chapman, Cox v. Chap- ing to the estate as security for a 
man, [1896] 2 Ch. 763, as to the .loan; and if he does so and -em- 
measure of time allowed, bezzles the proceeds, the pledgee of 

' Perry on Trusts, § 439. the mortgage will be compelliad to 

» And where discretion as to in- reassign it to the trust estate. Ken< 

vestments is allowed it must be horir- worthy v. Levi, 214 Pa. 235. 

estly exercised. In re Smith, Smith ' Powell v. Evans, 5 Yes. 839; 

V. Thompson, [1896] 1 Ch. 71; Matter Greybum v. Clarkson, L. R. 3 Ch. 

of Hall, 164 N. Y. 196. A power to 606; Hemphill's App., 18 Pa. 303; 

sell and reinvest does not authorize Pray's Appe$l, 34 Pa. 100 (overruling 

the trustees to incorporate the estate. Barton's Appeal, 1 Pars. Eq. 24); 

Garesche v. Levering Inv. Co., 146 Kimball v. Reding,' 11 Foster, 3S2; 

Mo. 436; Darlington's Estate, 245 King v. Talbot, 40 N. Y. 76; Perry 

Pa. 212. on Trusts, § 440; Hill on Trustees, 

Where a deed of -trust gives to the 582 (4th Am. ed.). 

trustee the power to "sell and convey ^ Perry on Trusts, §§450, 451; 

in fee simple the whole or any part HiU on Trustees, ut sup. 

of the trust estate * * * provided, . ° Rowth v. Howell, 3 Ves. 365; 

however, that the principal of the es- Swinfen v. Swinfen (No. 5), 29 Bcav. 

tate shall not become impaired or ^^' '^^V Jyf*^!V/T,/f-,of ' 

Dewey v. Lmdhout, 205 111. A. 322. 



CH. VI.] trustees; their powers and duties. 239 

liable to make good their loss.^ But he must be careful to 
make the deposit in the name of the trust estate, and not to 
his own credit; and not to mix trust funds with his own, 
otherwise he will be liable." 

140. Investments by trustees; English.rule. 

Supposing the trust property to have been converted into 
cash, the next duty of the trustee will be to see that the fund 
is invested in proper securities, and in such a way that it may 
be made available for the purposes of the trust.' 

As courts of equity in England were in the habit of direct- 
ing moneys, which were in the custody of the court to be in- 
vested4n £3 per cent, annuities, it came to be considered an 
estabhshed duty on the part of trustees to invest trust moneys 
in those funds.* Several statutes, however, have been 
passed by Which many other securities have been designated 
as lawful investments for trustees. Thus trustees are now 
allowed by act of parliament to invest in real securities in 
any pari; of the United Kingdom, and Bank of England, or 
Bank of Ireland, or East India Stock; unless such invest- 
ments are expressly forbidden by the trust instrument.^ 

141. Rules in the United States. 

A trustee cannot invest the trust funds in personal se- 

> Rehden v. Wesley, 29 Beav. 213; Mackey, 172 N. Y. App. Div. 192; 

]VIoyle».Moyle,2R.&M.710;John- Shaw v. Bauman, 34 Oh. St. 25; 

son V. Newton, 11 Hare, 160; Perry School, etc., v. Kirwln, 25 111. 73;" 

on Trasts, § 443; Matter of Knight, Brown o. Ricketts, 4' Johns. Ch. 303; 

21 Abb. N. C. 388. See In re Gram- Hill on Trustees, 575 (4th Am. ed.); 

mel's Est., 120 Mich. 487. Corya ».-Corya, 119 Ind. 593; Freas's 

2 Wren v. Kirton, 11 Yes. 337; Estate, 231 Pa. 256, 

Commonwealth v. McAlister, 28 Pa. ' The trustee cannot supinely allow 

486; Jenkins v. Walter, 8 G. & J. 218; the trust funds to remain uninvested. 

Lukens's Appeal, 7 W. & S. 48; Stan- Whitecar's Estate, 147 Pa. 368. 

ley's Appeal; 8 Pa. 431; Royer's Ap- * Smith's Manual of Equity, 194. ,' 

peal, 11 Pa. 36; De Jamette v. De ^ See Brown v. Wright, 39 Ga. 26; 

Jamette, 41 Ala. 709; Perry on King ». Talbot, 40 N. Y. 76. 

, Trvfsts, §§ 443, 463. See, also, Frith " 22 and 23 Vict., c. 35, § 30; 23 and 

V. Cartland, 2 Hen. & M. 417; 24 Vict., c.' 35, § 11; Id., c. 145, 30 and 

Marine Bank ». Fulton Bank, 2 31 Vict., c. 1325' § 2; Local Loans Act, 

Wall. 252; Kip v. The Bank of New 1875, 38 and 39 Vict., c. 83, § 27. 

York, 10 Johns'. 65; Kennedy v. See Hill on Trustees, 560 (4th Am. 

Strong, 10 Johns. 289; Sagoie v. ed.). 



240 



trustees; their powers and duties, [part I. 



curities; and even if he has a discretion as to investments, 
it is not a sound exercise of that discretion to invest in such 
securities.-' This is the rule in England and in the Ufiited 
States.^ So, also, for a trustee, in the absence of express" 
authority, to employ trust funds in trade or speculation, 
will be a gross breach of trust.' In England a trustee muet 
not invest in bank stock or shares of public companies, and 
the rule is the same in New York" and Pennsylvania.* But 
in Massachusetts the rule is different.* 

Mortgages on l-eal , estate are considered proper invest- 
ments for trustees in the United States, and in England the 
investment in such securities is now authorized by statute.* 



• See Knox v. MacKinnon; 13 App. 
Cas. 753, and Mattocks v. Moulton, 
84 Me. 545. 

^ Walker t)..Symonds, 3 Swans, 81 
note (o), citing Ryder w.^Bickerton 
(where Lord Hardwicke said that "a 
promissory note is evidence of a debt, 
but not security for it"); Adye v. 
Feuilleteau,- 1 Cox, 25; Holmes v. 
Dring, 2> Cox, 1 [see In re RajTier, 
Rayner v. Rayner (1904), 1 Ch. 176, 
'.where it was queried whether the word' 
!'' securities" had not changed so as 
?to include stocks and shares]. Smith 
*. Smith, 4 Johns. Ch. 281; Nyce's 
Estate, 5 W. & S. 256 j S^oyer's 
, Appeal, 5, Pa. 377; Wills's Appeal, 
" 22 Pa. 330; Gray v. Fox, Saxton (Ch.), 
259; Harding v. Lamed, 4 Alleil, 426; 
Clark V. Garfield, 8 Allen, 427; Moore 
, V. Hamilton, 4 Fla. 112; Spear w. 
Spear, 9 Rich. Eq. 184 [see, however, 
Nance v. Nance, 1 S. C. (n. s.) 209]; 
Barney v. Saunders, 16 How. 545; 
Perry on Trusts, §453; Duffprd v. 
Smith, 46 N. J. Eq. 216; AUis's Es- 
tate, 123 Wis. 223. If a trustee is au- 
thorized to invest in "jniblic com- 
panies," this does not mean "foreign 
pubUc companies;" for it is impossible 
for. the court to tell what are public 
oompanies according to foreign law. 
In re Castlehow, [1903] 1 Ch. 352; 



In re Randolph, 134 N. Y. Supp. 
1117. 

' Perry on Trusts, § 454. See 
Poole V. Munday, 103 Mass. 174, for 
an exceptional ease where the rule 
was not enforced. . 

* Ackerman v. Emott, 4 Barb. 626; 
Hemphill's Appeal, 18 Pa. 303; Wor- 
rell's Appeal, 23 Pa. 44; Streater'a 
Estate, 250 Pa. 333; Perry on Trusts, 
§456; Hill on Trustees, 578 (4th 
Am. ed.). In Kentucky (Stat- 
utes, § 4706) trust funds may be in- 
vested in the bonds of any railroa^ 
which has been in operation more 
than ten years and has not during 
that time defaulted in the pajrment of 
its bonded debt. Aydelott v. Breed- 
ing, 111 Ky. 847; Deposit Bank v. 
Rose, 113 Ky. 946; Robertson v. 
Robertson, 130 Ky. 293. . 

* Harvard Coll. v. Ainory, 9 Pick. 
446; Lovell v. Minot, 20 Pick. 116; 
Perry on Trusts, § 456. But is re- 
sponsible for the exercise of a sound 
discretion in making such invest- 
ments. Davis' Appeal, 183 Mass. 
499; "Thayer v. Dewey^ 185 Mass. 
68. 

« Perry on Trusts, §§457, 458; 
Stat. 22 and 23 Viet., c. 35 (Lord St. 
Leonard's Act). As to what should 
be the amount of the loan in propor- 
tion to the value of the property, see 



1 
CH. VI.] TEUSTEES; THEIR POWERS AND DUTIES. 241 

In several of the United States the subject of inveslments 
by trustees is expressly regulated by statute.^ 

If a trustee invests in securities which he is not authorized 
to buy, the cestui que trv^t may elect to adopt or to reject the 
investment. If the investment is rejected, it belongs to the 
trustee subject to a hen for 'the purchase-money in favor of 
the trust estate. If, however, the trustee invests in secu- 
rities which he is authorized to buy, but fails to use due care in 
the purchase of them, the investment belongs to the trust 
estate, and the trustee is liable to make good any loss which 
may ensue.^ 

It is proper to add that the foregoing statements of the 
law in reference to investments apply to trustees properly so 
called; they may not be applicable to persons who may be 
styled gwosi-tnistees or trustees sub modo — as, for instance, 
the manager of a trading company or the directors of a bank 
or a railway. Investments by such persons ' ' aire to be judged, 
not by the rules which have been laid down as to the invest- 
ment of settled funds, but (more nearly, at all events) by 
thdse which regulate the duties of the managihg partners 
of an ordinary trading firm as between themselves and those 
- partuCTS who do not take an active part in the conduct of 
the firm's business." ' 

142. When trustees are chargeable with interest. 

A trustee is chargeable with interest on balances that he 
improperly retains in his hands, and sometimes with com- 
poimd interest; * and he is a^lso so chargeable when ^e mixes 

Lewin on Trusts, 375-377 (12th Eng. BuQding and Investment Co. v. Shep- 

ed.);/nre01ive, 34Ch. D. 72. herd, 36 Ch. D. ,798. See what is 

' Perry on Trusts, § 459. See said by the same judge to the same 

Cridland's Estate, 132 Pa. 486; Wal- effect in the Sheffield _and South 

ler V. Catlett, 83 Va. 200, where an Yorkshire Permanent Building Soci- 

investment in Confederate bonds was ety «. Aizlewood, 44 Ch. D. 454. See, 

"held not to be a breach of trust, since also^ the remarks of Kay, J., In re 

the trustee acted "in good faith and Faure Electric Accumulator Com- 

with the lights of that time." pany, 40 Ch. D. 150, and the cases 

'In re Salmon, 42 Ch. D. 351; referred to by him. 
Preaa's Estate, 231 Pa. 256. * See Penny v. Avison, 3 Jur. (n. s.) 

*lPer Sterling, J., in Leeds Est. 62; Barclay v. Andrew, [1899] 1 Ch. 

IG 



242 ^ trustees; their powers and duties, [part i. 

the trust funds with his own and deposits them in his own 
name; ^ but not otherwise.^ Moreover, if- a trustee is directed 
by a trust instrument to invest in a particular stock, and 
neglects to do so, the cestui que trust has his election to take 
the money and legal interest thereon, or so many shares of 
stock as the money would have purchased at the time when 
the investment ought to have been made, and the dividends 
on the same.' And so, if a trustee embarks the trust funds 
in business, the cestui que trust may take either the amount 
with interest, or the profits of the business; * but if he elects 
to take the latter, he must take them cum onere, and must 
share the losses.^ 

143. Trustee cannot use his position for his own advantage. 

It is one of the fundamental principles of trusts, that a 
trustee cannot use his position as a trustee for his own advan- 
tage in any way.* He; must have an eye single to the iaterests 
of the cestui que trust. The rule in the Rumford Market Case, 
and similar cases already noticed under the head of Construc- 

B74; Schiefflin v. Stewart, 1 Johns, a case in which the trustee was not 

Ch. 620; Manning v. Manning, 1 charged. 

Johns. 536 (see- Minini v. Cox, -5 ' Shepherd v. Mouls, 4 Hare, 504; 

Johns. 448, for a case in which the Robinson v. Robinson, li DeG., M. & 

trustee was not charged); Bruner's G. 256; Byrchall ». Bradford, 6 Mad. 

Appeal, 57 Pa. 46; Norris's Appeal, 71 235; Perry on Trusts, §469. See, 

/Pa. 123; Gray v. Thompson, 1 Johns, also, Mclntire i;. Zanesville, 17 Ohio 

Ch. 82; In re Ricker's Estate, 14 St. 352; Norris's Appeal, 71 Pa. 125; 

Mont. 153; Noble v. Jackson, 124 Lamb's Appeal, 58 Pa. 142; Key v. 

Ala. 311; Jacoway v. Hall, 67 Ark. Hughes's Ex'rs, 32 W. Va. 184. 

■-340; Sanquinett v. Webster, 153 Mo. * Jones v. Foxall, 15 Beav. 392; In 

343. • re Davis, [1902] 2 Ch. 314; Robinett's 

'Berner's Estate, 6 Watts, 251; Appeal, 36 Pa. 174; Kyle ». Barnett, 

Dyott's Appeal, 2 W. & S. 565; Rob- 17 Ala. 306; Barney v. Saunders, 

inett's Appeal, 36 Pa. 174; Wistar's 16 How. 543; McKnight's Ex'rs v. 

Appeal, 54 Pa. 60; Hess's Estate, '68 Walsh, 23 N. J. Eq. 146; Perry on 

Pa. 458; In re Assignment of Mur- Trusts, § 470. See Whitney v. Smith, 

doch & Dickson, 129 Mo. 488; In re 4 Ch. App. 513; Perrin v. Lepper, 72 

Thompson, 101 Cal. 349; St. Paul's Mich. 454. 

Trust Co. V. Kittson, 62 Minn. 408; * Small's Estate, 144 Pa. 293. 

Re Hodges' Estate, 66 Vt. 70; Noble's ° Green v. Winter, 1 Johns. Ch. 36; 

Estate, Irwin's Appeal, 178 Pa. 460. Kepler v. Davis, 80 Pa. 157; Aber- 

» Hess's Estate, 68 Pa. 458. See ^®®" '^°^™ Council ». Aberdeen Uni- 

Mathewson v. Davis, 191 111. 391, for ^''vK^'oL^fP'cPfoo^^®'' "^^"^ -°" "• 
' ' Smith, 254 U. S. 588. 



CH. VI.] trustees; their powers and duties. 



243 



live- Trusts, are, illustrations of the strictness with which 
this rule is enforced.* A trustee cannot make any profit at 
the expense of the trust estate; ^ nor can he make a profit 
out of his trust even though the estate is not a loser. A 
trustee may not participate in commissions of hi§ own firm 
on transactions with the estate.^ He cannot use trust funds 
for his own benefit; * he cannot buy- in trust property for 
himself at his own sale, or a sale procured by him, nor can he 
buy up any debt, charge, or encumbrance to which the trust 
estate is liable, at less than is actually due thereon, and then 
collect the full amount from the estate.' And it has been 
held in many cases that a trustee may not even purchase the 
trust property at- a judicial sale, brought about by a third 
party, and which he had taken no part in procuring;' al- 
though upon this point there are several authorities the other 
way.^ Contracts between a trustee and cestui que trust may 



• Ante, §§ 92 e< seq. See, also, Blau- 
velt V. Ackerman, 20 N. J. Eq.' 141; 
\Washington R. R. Co. v. Alexandria 
R. R. Co.; 19 Gratt. 692; Boerum v. 
Schenek, 41 N. Y. 182. 

' As to trustees' liability for prof-, 
4ts, see Springer's Estate, 51 ,Pa. 
343. 

» Magpider v. Drury, 235 U. S. 
106. . - 

* McEachem o. Stewart,. 114 N. 
Car. 370. 

' Burgess v. JVheate, 1 Eden, 226; 
Sugden v. Crossland, 3 Sm. & Giff. 
192; Robinson v. Pett, 3 P. Wms. 
251, n. (o); Michoudw. Girod, 4 How. 
503; Pooley v. Quilter, 4 Drew, 184; 
2 DeG. & J. 327; Schoonmaker v. 
Van Wyck, 31 Barb. ,457; Herr's 
Estate, 1 Gr. Cas. 272; Parshall's 
Appeal, 65 Pa. 235; Baker's Appeal, 
120 Pa. 33; Barksdala v. Finney, 14 
Gratt. 338; Green ». Winter, 1 Johns. 
Ch. 27; Averitt v. Elliott, 109 N. C. 
560; Knox v. Armistead, 87 Ala. 511; 
Lane v. Maple Mill, 232 Fed. 421; 
Baker V, Schofield, 243 U. S. 118; 



Rejrnolds v. Hennessy, 15 R. J. 
215. 

«Obert V. Obert, 1 Beas. 423; 
Ricketts V. Montgomery, 15 Md. 46; 
Jamison v; Glascock, 29 Mo. 191; 
Bank v. Dubuque, 8 la. 277; Elliott 
V. Pool, 3 Jon. Eq. 17; Campbell v. 
Johnson, 1 Sandf. Ch. 148; Chand- 
ler V. Moulton, 33 Vt. 245; Martin v. 
Wynkoop, 12 Ind. 266; Ogden ». 
Larrabee, 57 111. 389; King v. Rem- 
ington, 36 Minn. 15; Chiles ti. Gal- 
la,gher, 67 Miss. 413. 

'Prevost V. Gratz, 1 Pet. C. C. 
364; Fisk v. Sarber,- 6 W. & S. 18; 
Chorpenning's Appeal, 32 Pa. 312; 
Elrod V. Lancaster, 2 Head, 571; 
Mercer ». Niwsom, 23 Ga. 151; 
Huger V. Huger, 9 Rich. Eq. 217; 
Earl V. Halsey, 1 McCart. 332; Hill 
on Trustees, 249; ,250, note (4th Am. 
ed.) ; note to Fox v. Mackreth, 1 Lead. 
Cas. Eq. 252 et seq. (4th Am. ^.). 
See ante, § 94. For discussion of this 
point see article in 31 Am. Law Reg. 
743, 748, 



244 TRUsiaiEs; their powers and duties, [part i, 

be made, but they dre scrutinized by the court's with great 
severity.^ 

144. Compensation of trustees; difference between Eng- 
lish rule and that in most of the United States. 

The rule that a trustee can obtain no benefit whatever 
from his position, was in England carried to the extent of 
holding that he was not even entitled to compensation for 
his trouble and responsibility in the care and management 
of the trust estate, unless it was expressly allowed in the 
trust instrument, 2 except, perhaps, in some very extraordi- 
nary cases; ' and this rule applies also to executors, guardians, 
receivers, directors of corporations^ and in general to all 
fiduciaries.^ But this rule has not been adopted in the 
United States; and trustees and other fiduciaries in this 
country are entitled to a reasonable compensation for their 
services.* The amount is in some states fixed by statute, 
and in others regulated by the court to which the trustees 
are liable to account.* The English rule in regard to com- 
missions was cited with approval by Chancellor Kent, in 
two early cases in New York; ^ but the only states in which it 
is now followed appear to be Delaware * and Illinois.' 

In England, however, trustees are allowed for their expen- 
ses reasonably and properly incurred in the execution of the 
trust; "• and it need hardly be added that the same rule 
exists in the Uriited States." Allowances to trustees are, 
however, in the discretion of the court; and even the expenses 

» Perry on Trusts, §428. Post, « See Perry on Trusts, § 918, notes, 

Part II., Chap. II., Sec. III. where the authorities and statutes 

2 Robinson v. Pett, 3 P. Wms. 251; are collected; Duflford v. Smith, 46 

2 Lead. Cas. 206, and notes. Ni J. Eq. 216. 

^ In re Freeman's Settlement ' Green «. Winter, IJohns. Ch. 37; 

Trusts, 37 Ch. D. 148. Manning •». Manning, 1 Johns. Ch. 

* Perry on Trusts, § 904. Notes to 534 

Robinson « Pett, supra": . ' > Egbert v. Brooks, 3 Barring. 112; 

' Notes to Robmson w.^Pett, 2 q* i t)i ^i. ,• tt • ^^a 

Lead. Cas. Eq:.206; Perry on Trusts, ^*f^ "• P^^**> * ^^"'^- ^^*- 

§ 916. See Wistar's Appeal, 54 Pa. ° Constant v. Matteson, 22 111. 546; 

63; Rothschild v. Dickinson, 169 Arnold v. Alden, 173 111. 229. 

Mich. 200; Rdssell v. Passmore '° Perry on Trusts, § 910; Hill on 

(Va.), 103 S. E. 652; Weiderhold v. Trustees, 574. 

Mathis's, 204 111. A. 3. " Green v. Wmter, 1 Johns. Ch. 37 ; 



CH. VI.] trustees; their powers and duties. ^246 

of a trustee will not be reimbursed if ihey have been incurred 
unnecessarily, and against the remonstrances of the cestui 
que trust.^ A fortiori will they not be allowed when the 
trustee has assumed a hostile attitude to the trust estate . 
and claimed the same as his own.^ 

Trustees may claim indemnity from their cestui que trust 
for liabilities incurred on behalf of the trust estate. It was 
said in an early case that "the cestui que trust ought to save 
the trustee harmless as to all damages relating to the trust," ' 
and this doctrine has been recognized in modem cases. The 
plainest principles of justice require thatwhere the beneficial 
owner is absolutely entitled to the entire estate, he should 
personally bear the burden incidental to such ownership; 
and that even where the trust property is settled on tenants 
for life and children the right of their trustee to be indemni- 
fied out of the whole trust estate against any liability arising 
out of any part of it, would seem to be clear and indisputable.^ 

146. Trustee cannot delegate his authorify. 
, The position of trustee is one of personal confidence, and he 
caniiot, therefore, delegate his office even to a co-trustee, ^i A 
trustee may, however, employ ^ steward, agent, or attorney 
in cases where it is usual to do so in the ordinary course of 
business,' or a broker,' but he must be careful to see that the 

Towle V. Mack, 2 Vt. 19; McEIhen- May ». Frazee